THE  LIBRARY 

OF 

THE  UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 

SCHOOL  OF  LAW 
GIFT  OF 

HARRY  G  SADICOFF 


WATER   RIGHTS 


IN   THE 


WESTERN    STATES 


THE  LAW  OF  PRIOR  APPROPRIATION  OF  WATER  AS  APPLIED  ALONE  IN  SOME  JURIS- 
DICTIONS, AND  AS,  IN  OTHERS,   CONFINED  TO  THE  PUBLIC  DOMAIN,  WITH  THE 
COMMON   LAW  OF   RIPARIAN   RIGHTS    FOR   WATERS   UPON   PRIVATE   LANDS. 
FEDERAL,  CALIFORNIA  AND  OREGON   STATUTES   IN  FULL,  WITH  DIGEST 
OF   STATUTES   OF   ALASKA,   ARIZONA,   COLORADO,   HAWAII,   IDAHO, 
KANSAS,     MONTANA,     NEBRASKA,     NEVADA,     NEW     MEXICO, 
NORTH     DAKOTA,     OKLAHOMA,     OREGON,     PHILIPPINE 
ISLANDS,     SOUTH     DAKOTA,     TEXAS,     UTAH, 
WASHINGTON  AND  WYOMING 

FORMS 


BY 

SAMUEL   C.   WIEL 

Of  the  San  Francisco  Bar 


REVISED  AND  ENLARGED  TO  JUNE  1,  1911 

VOLUME  I 

SAN  FRANCISCO 

BANCROFT-WHITNEY  COMPANY 
1911 


T 

W 
it// 


COPYRIGHT,  1905 

BY 
SAMUEL  C.  WIEL 

COPYRIGHT,  1908 

BY 
SAMUEL  C.  WIEL 

COPYRIGHT,  1911 

BY 
SAMUEL  C.  WIEL 


THE  FILMER  BROTHERS  ELECTROTYPE  COMPANY 

TYPOGRAPHERS  AND  STEREOTYPERS 

SAN  FRANCISCO 


PREFACE  TO  THIRD  EDITION. 


In  the  evolution  of  the  Western  water  laws  there  resulted  un- 
certainties; as,  for  example,  in  not  distinguishing  the  California 
law  and  the  Colorado  law,  nor  the  corpus  of  water  and  its  usufruct. 
There  are  also  various  changes  occurring  in  the  law  of  prior  ap- 
propriation as  it  is  breaking  away  from  its  origin  as  a  possessory 
right  upon  the  public  domain.  Considerable  latitude  was  conse- 
quently necessary  in  endeavoring  a  clear  and  full  presentation,  so 
that  the  analysis  of  the  subject,  the  division  and  plan  of  the  book, 
should  picture  the  accumulation  of  Western  water-law  authorities 
as  a  whole,  while  being,  at  the  same  time,  complete  in  detail. 

In  numbering  the  sections,  some  numbers  were  left  blank  be- 
tween each  chapter  to  allow,  in  revising  the  manuscript  for  the 
press,  opportunity  to  shift  the  sections  into  a  more  suitable  order, 
or  to  add  new  ones.  Sections  were  renumbered,  owing  to  new 
matter  and  rearrangement,  so  that  numbers  in  previous  editions  do 
not  correspond  to  those  here.  Every  endeavor  has  been  made  by 
the  author  and  by  the  publishers  to  insure  accuracy.  If  any  errors 
have  still  crept  in,  the  author  will  be  grateful  to  readers  who  will 
kindly  point  them  out  to  him. 

It  need  hardly  be  said  that  in  dealing  with  matters  involving 
regulation  of  public  services,  or  with  public  lands,  the  aim  has 
been  to  report  the  authorities,  and  not  private  beliefs  of  what  the 
law  "ought  to  be";  with  no  effort  to  make  out  a  case  for  a  side  of 
any  doctrine  or  controversy.  In  these  things,  as  in  other  matters, 
there  has  been  the  object  (than  which  there  is  none  harder)  simply 
to  state  truly  and  accurately,  to  the  best  of  a  very  limited  ability, 
the  law  as  it  is  now  found  in  the  authorities.  A  small  success  in 
that — in  the  cause  of  truth — is  all  that  this  book  pretends  to,  or 

desires. 

(iii) 


IV  PREFACE    TO    THIRD    EDITION. 

Use  has  been  made  of  articles  contributed  by  the  author  to  the 
Harvard  Law  Review,  Yale  Daw  Journal,  American  Law  Review 
and  Columbia  Law  Review,  to  whom  acknowledgment  is  made  in 
the  passages  where  they  occur.  The  author  further  expresses  his 
thanks  to  the  State  Engineers  and  to  the  Department  of  Agricul- 
.ture  of  the  University  of  California,  whose  members  extended  many 
courtesies. 

As  a  final  word :  This  is  the  last  edition  of  this  book  which  will 
be  prepared.  The  second  edition  having  been  exhausted  within  a 
year  and  some  months  after  issuance,  an  opportunity  was  pre- 
sented, in  preparing  this  third  one,  to  improve  and  enlarge  in  the 
light  of  further  study,  and  of  developments  in  the  law  within  the 
last  three  years.  The  author  now  takes  leave  of  the  book  per- 
manently. If  in  later  days  he  should  return  to  it,  it  will  not  be 
until  many  years  have  passed;  and  probably  it  will  not  be  at  all. 

August  1,  1911. 

SAMUEL  C.  WIEL. 


TABLE  OP  CONTENTS. 


[Vol.  I,  »ecs.   1-1038.     Vol.  H,  sees.   1039-1470.] 

PAET  I. 

FIRST  PRINCIPLES. 

CHAPTER  1. 
RUNNING  .WATER. 

§  1.  Classification  of  waters. 

§  2.  The  negative  community. 

§  3.  Development  in  the  common  law. 

§  4.  American  authorities. 

§  5.  Common  or  public. 

§  6.  State  in  trust  for  the  people. 

§  7.  Conclusion. 

§§  8-14.     (Blank  numbers.1) 


CHAPTER  2. 
THE  USUFRUCT  OF  THE  NATURAL  RESOURCE. 

§  15.     Eights  of  use. 

§  16.     Same. 

§  17.     American  authorities. 

§  18.     Western  authorities. 

§  19.     Conclusion. 

§§  20-29.     (Blank  numbers.) 


CHAPTER  3. 

WATER  SEVERED  FROM  THE  NATURAL  RESOURCE  AND 
REDUCED  TO  POSSESSION. 

§  30.  Introductory. 

§  31.  Severed  water. 

§  32.  What  acts  reduce  the  water  to  possession. 

§  33.  Analogy  to  wild  animals — A  "mineral  ferae  naturae* 

§  34.  Distinguished  from  percolating  water — Ohio  Oil  Co.  v.  Indiana. 


vi  TABLE  OF  CONTENTS. 

[Vol.  I,  sees.  1-1038.     Vol.  H,  sees.  1039-1470.] 

§  35.     Becoming  personal  property. 

§  36.     Same. 

§  37.     Escaped  or  abandoned  water. 

§  38.     Recapture  where  abandonment  not  intended. 

§  38a.  Same. 

§  39.     Same. 

§  40.     Statutory  regulation  of  recapture. 

§§  41-50.     (Blank  numbers.) 


CHAPTER  4. 
THE  LAW  CONFINED  TO  NATURAL  RESOURCES. 

§  51.     The  natural  usufruct  alone  of  practical  importance. 
§  52.     Natural  and  artificial  watercourses  distinguished. 

§  53.     The  law  of  natural  watercourses  does  not  apply  to  water  in  an  arti- 
ficial watercourse. 

§  54.     Importance  of  the  right  of  access  to  the  natural  stream. 
§  55.     Artificial  flow  claimants  may  have  priorities  between  themselves. 
§  56.     But    artificial   flow   claimants    have   no    original    rights    against    the 

creator  of  the  flow,  the  owner  of  the  natural  resource. 
§  57.     Same. 
§  58.     Same. 

§  59.     Some  qualifications. 

§  60.     Qualification  by  grant,  condemnation,  or  dedication. 
§  61.     Qualification  by  drainage  from  a  foreign  source  into  a  natural  stream. 
§  62.     Qualification  by  relation  back  to  a  natural  stream. 
§  63.     "First  principles"  deduced. 
§§  64-65.     (Blank  numbers.) 


PAKT  II. 

CALIFORNIA  AND  COLORADO  DOCTRINES. 

CHAPTER  5. 
HISTORICAL  REVIEW.— TO  THE  ACT  OF  1866. 

A.     ORIGIN  OF  THE  DOCTRINE  OF  PRIOR  APPROPRIATION  IN  THE 
CUSTOMS  OF  PIONEER  MINERS. 

§  66.  Acquisition  of  the  Western  public  domain. 
§  67.  California  before  the  arrival  of  pioneers. 
§  68.  Mexican  law. 


TABLE  OF  CONTENTS.  yii 

[Vol.  I,  sees.   1-1038.     Vol.  II,  sees.   1039-1470.] 

§  69.  Discovery  of  gold  in  California  in  January,  1848. 

§  70.  Immigration  upon  the  discovery  of  gold. 

§  71.  Customs  of  the  pioneer  miners. 

§  72.  The  customs  approved  by  the  legislature. 

§  73.  Water  customs  as  part  of  the  mining  customs. 

B.     DEVELOPMENT  OF  THE  CUSTOMS  INTO  LOCAL  LAW. 

§  74.  The  questions  presented  to  the  courts. 

§  75.  The  customs  and  the  common  law. 

§  76.  The  customs  and  the  court. 

§  77.  Irwin  v.  Phillips. 

§  78.  Prior  rights  by  appropriation  upheld  in  court. 

§  79.  Endeavors  to  follow  and  not  disregard  the  common  law. 

§  80.  The  common  law  departed  from. 

§  81.  The  question  of  common  law  subordinated. 

C.     THE   QUESTION   OF   FEDERAL   PUBLIC   LAND   LAW. 

§  82.  Who  was  the  ultimate  proprietor? 

§  83.  The  pioneers  as  trespassers  against  the  United  States. 

§  84.  Spread  of  the  Possessory  System. 

§  85.  Possessory  System  not  confined  to  mining. 

§  86.  Precarious  status  of  possessory  rights  on  the  approach  of  the  Civil  War. 

§  87.  Revocation  of  possessory  rights  by  Federal  patent. 

D.  THE  THEORY  OF  FREE  DEVELOPMENT  OF  THE  PUBLIC  LANDS 

UNDER  LOCAL  LAW. 

§  88.     Unpopularity  of  the  "trespasser"  basis  of  the  Possessory  System. 
§  89.     The  theory  of  a  grant  with  the  dignity  of  a  fee. 
§  90.     Same. 
§  91.     "Excepting  the  government." 

E.     THE  ACT  OF  1866. 
§  92.     Introductory. 
.§  93.     Congress  and  the  public  domain. 
§  94.     The  act  of  1866. 

§  95.     The  act  explained  by  Judge  Field  and  other  authorities. 
§  96.     An  enactment  of  the  policy  that  the  waters  on  public  lands  were  open 

to  free  development  under  local  law. 
§  97.     Operates  as  a  grant. 
§  98.     Only  declaratory  of  the  California  law. 
§  99.     Conclusion. 
§§  100-107.     (Blank  numbers.) 


viii  TABLE  OF  CONTENTS. 

[Vol.  I,  sees.   1-1038.     Vol.  n,   sees.   1039-1470.] 

CHAPTER  6. 

HISTORICAL  REVIEW    (CONTINUED)— FROM   THE   ACT 
OF  1866  TO  THE  PRESENT. 

A.     THE  PUBLIC  LAND  QUESTION  LAID  AT  BEST. 
§  108.     The  Federal  policy  settled. 
§  109.     Early  State  legislation. 
§  110.     New  questions. 

B.     THE    CONFLICT    OVER   RIPARIAN   RIGHTS. 

§  111.  Private  title  to  land  and  new  industries. 

§  112.  The  law  and  irrigation. 

§  112a.  Same. 

§  113.  Riparian  rights  before  Lux  v.  Haggin. 

§  114.  Same. 

§  115.  Lux  v.  Haggin. 

§  116.  Result  of  Lux  v.  Haggin.  • 

§  117.  Riparian  rights  upheld  in  ten  States  and  Territories. 

§  118.  Riparian  rights  rejected  in  eleven  States  and  Territories. 

§  119.  Same — "Landowner"  statute. 

§  120.  Same — Collateral  results  of  the  rejection. 

§  121.  In  the  supreme  court  of  the  United  States. 

§  122.  Same. 

C.    LATER  AND  RECENT  STATE  LEGISLATION. 

§  123.  Public  service  declared  under  State  control. 

§  124.  "Water  codes. 

§  125.  Same — (Legislation  in  1911). 

§  126.  Effect  of  this  legislation  on  riparian  rights. 

§  127.  Irrigation  districts — Wright  Act. 

D.     LATER  AND  RECENT  FEDERAL  LEGISLATION. 

§  128.  Desert  Land  Act. 

§  129.  Same — Hough  v.  Porter. 

§  130.  Same — New  Oregon  doctrine  based  on  the  Desert  Land  Act. 

§  131.  Federal  Right  of  Way  Acts. 

§  132.  Carey  Act. 

§  133.  National  Irrigation  Act. 

§  134.  Water  Users   Association. 

§  135.  Other  Federal  legislation. 

§  136.  Recent  revival  of  discussion  of  Federal  policy. 

§  137.  Conservation. 

E.     THE   FUTURE. 

§  138.  Future  of  the  system  of  appropriation. 

§  139.  Transitionary  state  of  the  law  of  appropriation  within  itself. 

§  140.  Converging  of  appropriation  and  riparian  rights. 


TABLE  OF  CONTENTS.  ix 

[Vol.  I,  sees.  1-1038.     Vol.  II,  sees.   1039-1470.] 

§   141.     Statement  of  the  doctrine  of  appropriation. 

§  142.     Conclusion. 

§§  143-150.     (Blank  numbers.) 


CHAPTER  7. 
UNITED  STATES  OR  STATE— CALIFORNIA  DOCTRINE. 

§  151.  Introductory. 

§  152.  The  Federal  title. 

§  153.  Same. 

§  154.  California  doctrine  based  upon  the  Federal  title. 

§  155.  Appropriation  as  a  grant  from  the  United  States  under  this  system. 

§  156.  Eiparian  rights  a  deduction  from  the  Federal  title. 

§  157.  Power  of  Congress  in  the  future  under  this  theory. 

§§  158-166.     (Blank  numbers.) 


CHAPTER  8. 
UNITED  STATES  OR  STATE— COLORADO  DOCTRINE. 

A.     STATEMENT  OF  THE  COLORADO   DOCTRINE. 

§  167.  The  State  system. 

8  168.  The  authorities  quoted. 

§  169.  Same. 

§  170.  Water  the  "property  of  the  public"  or  "of  the  State." 

§  171.  Sources  from  which  this  declaration  is  derived. 

§  172.  Construction  given  to  the  declaration. 

§  173.  Objections  raised  on  behalf  of  the  United  States  as  landowner. 

§  174.  Objections  on  be%alf  of  private  landowners. 

B.     BASIS   OF  THE   COLORADO   DOCTRINE. 

§  175.  Replies  to  the  foregoing  objections. 

§  176.  Basis  upon  Federal  action. 

§  177.  Basis  upon  absence  of  Federal  action. 

§  178.  Basis  upon  State  sovereignty  alone. 

§  179.  Some  other  arguments. 

§  180.  Views  of  United  States  supreme  court. 

§  181.  Same — Second  period. 

§  182.  Same — Third  period. 

§  183.  Same. 

§  184.  Same. 

§  185.  Some  inconsistencies  and  variations. 

§  186.  Conclusion. 

§  187.  Same. 
§§  188-196.     (Blank  numbers.) 


x  TABLE  OF  CONTENTS. 

[Vol.  I,  sees.  1-1038.     Vol.  II,  sees.  1039-1470.] 

CHAPTER  9. 
APPROPRIATIONS  ON  PUBLIC  LAND. 

A.     UNRESERVED  PUBLIC  LAND. 

§  197.  Extent  of  public  land  area. 

§  198.  The  first  appropriations  were  all  on  public  land. 

§  199.  State  lands. 

§  200.  Presumption  that  lands  are  public. 

§  201.  Abandoned  or  forfeited  claims  to  public  land. 

§  202.  Rights  of  way  and  reservoir  sites  on  unreserved  public  land. 

§  203.  Federal  Right  of  Way  Acts  on  unreserved  public  land. 

B.     RESERVED  PUBLIC  LAND. 

§  204.  New  governmental  policy. 

§  205.  Extent  of  the  reserved  domain. 

§  206.  Authority  to  make  withdrawals. 

§  207.  Military  and  Indian  reservations — Waters  on. 

§  208.  Rights  of  way  over  military  and  Indian  reservations. 

§  209.  Forest  domain — Extent  of. 

§  210.  Waters  upon  forest  reserves. 

§  211.  Rights  of  way  and  reservoir  sites  upon  forest  reserves. 

§§  212-220.     (Blank  numbers.) 


CHAPTER  10. 
APPROPRIATIONS  ON  PRIVATE  LAND. 

A.     RIGHTS  OF  WAY  CANNOT  BE  APPROPRIATED  OVER  PRIVATE 

LAND. 

§  221.     General  protection  of  private  land  against  ditch-building. 
§  222.     Consistently  the  California  law. 

§  223.     Early  conflict  in  the  Colorado  law — Yunker  v.  Nichols. 
§  224.     Yunker  v.  Nichols  no  longer  followed. 

§  225.     Access  to  the  stream  a  determinative  factor  in  the  law  of  water- 
courses. 
§  226.     Exception  in  favor  of  government  ditches. 

B.     WATER  ON  PRIVATE  LAND. 

§  227.     Difference  in  California  and  Colorado  as  to  water  on  private  land. 
§  228.     Water  flowing  over  or  by  private  land  cannot  be.  appropriated  in 

California. 

§  229.     Authorities  quoted. 

§  230.     Water  partly  on  public  and  partly  on  private  land  in  California. 
§  231.     The  law  of  appropriation  of  diminishing  importance  in  California. 
§  232.     Water  on  private  land  in  Colorado. 
§  233.     Conclusions. 
§§  234-242.     (Blank  numbers.) 


•  TABLE  OF  CONTENTS.  xi 

[Vol.  I,  sees.  1-1038.     Vol.  II,  seen.  1039-1470.] 

CHAPTER  11. 
APPROPRIATIONS  ON  PRIVATE  LAND  (CONTINUED). 

243.  Introductory. 

244.  By  the  landowner  himself  on  his  own  land. 

245.  By  grant,  condemnation,  or  prescription. 

246.  By    disseisin — Wrongful    appropriations — Duckworth    v.    Watson- 

ville  Co. 

247.  Same. 

248.  Conclusions. 

I  249-255.     (Blank  numbers.) 


CHAPTER  12. 

RELATION   OF   PUBLIC  LAND   APPROPRIATORS   TO 
RIPARIAN  PROPRIETORS. 

§  256.  Another  phase  of  the  same  question. 

§  257.  Subsequent  settlers. 

§  258.  Subsequent  settlers  under  Federal  Eight  of  Way  Acts. 

§  259.  Prior  settlers. 

§  260.  Prior  settlers  who  hold  the  land  in  fee. 

§  261.  Prior  settlers  before  patent. 

§  262.  Prior  settlers  under  the  Colorado  doctrine. 

§  263.  Prior  settlers  under  Federal  Eight  of  Way  Acts. 

§  264.  Conclusion. 

§§  265-274.     (Blank  numbers.) 


CHAPTER  13. 
ELEMENTS  OF  A  RIGHT  BY  APPROPRIATION. 

275.  Introductory. 

276.  The  right  is  usufructuary. 

277.  No  property  in  the  "corpus"  of  the  water. 

278.  No  property  in  the  channel. 

279.  The  right  is  exclusive. 

280.  Distinguished  from  right  to  a  ditch. 

281.  Independent  of  mode  of  enjoyment. 


xii  TABLE  OF  CONTENTS. 

[Vol.  I,  sees.  1-1038.     Vol.  II,  sees.  1039-1470.] 

§  282.  Eecent  tendency  to  the  contrary. 

§  283.  Heal  estate. 

§  284.  Same — Taxation. 

§  285.  An  estate  of  freehold. 

§  286.  Conditional. 

§  287.  An  incorporeal  hereditament. 

§  288.  Definition. 

§  289.  Same. 

{§  290-298.     (Blank  numbers.) 

CHAPTER  14. 
RELATION  BETWEEN  APPROPRIATORS. 

A.  SENIOR  EIGHTS. 
i  299.     Priority  governs. 

§  300.     Whole  stream. 

§  301.     In  times  of  deficiency. 

B.  JUNIOE  EIGHTS. 
§  302.     Successive  appropriation. 

§  303.  Same. 

i  304:  Same. 

§  305.  Periodical  appropriations. 

§  306.  Temporary  appropriations. 

§  307.  No  partiality. 

§  308.  Preferences. 

§  309.  Pro-rating. 

C.    COEBELATIVE  EIGHTS  BETWEEN  APPEOPBIATOES. 

§  310.  The  principle  of  "unreasonable  priority." 

§  311.  Some  early  rulings. 

§  312.  The  dictum  in  Basey  v.  Gallagher. 

§  313.  Eecent  tendencies. 

§  314.  Same. 

§  315.  Conclusions. 

§§  316-317.     (Blank  numbers.) 


CHAPTER  15. 
WHO  CAN  APPROPRIATE. 

§  318.  Persons  generally. 

§  319.  Trespassers. 

§  320.  Tenants  in  common. 

§  321.  Same. 

§  322.  Eiparian  owners. 

§  323.  Early  riparian  settlers  in  California. 


TABLE  OF  CONTENTS.  Jtiii 

[Vol.  I,  sees.  1-1038.     Vol.  II,  sees.  1039-1470.] 

324.  Same. 

325.  Corporations. 

326.  Appropriations  by  the  United  States. 
\  327-330.     (Blank  numbers.) 


CHAPTER  16. 
WHAT  CAN  BE  APPROPRIATED. 

§  331.     Classification  of  waters. 

A.     WATERCOURSES. 

§  332.  Water  in  a  surface  watercourse. 

§  333.  What  constitutes  a  watercourse. 

§  334.  Same — Definition. 

§  335.  Same — Examples. 

§  336.  Springs. 

§  337.  Surface  tributaries. 

§  338.  Sloughs. 

B.     NAVIGABLE   AND   INTERSTATE   STREAMS. 

§  339.     Navigable  streams. 

§  340.     Interstate  streams. 

§  341.     Same — Controversies  between  States — Kansas  v.  Colorado. 

§  342.     Between  riparian  owners  in  one  State  and  appropriators  in  an- 
other State. 

§  343.     Same — Between  appropriators  in  different  States. 

§  344.     Difficulties  of  procedure. 

§  345.     Conclusions  regarding  interstate  streams. 

C.     STANDING  AND  DIFFUSED  WATER. 
§  346.     Lakes  and  ponds. 
§  347.     Flood  or  storm  or  surface  water. 
§  348.     Drainage  of  surface  water. 
§  349.     Use  of  surface  water. 
§  350.     Swamp  lands. 
§  351.     Underground  water. 
§§  352-360.     (Blank  numbers.) 


CHAPTER  17. 

HOW  AN   APPROPRIATION   IS   MADE.     THE    ORIGINAL 

METHOD. 

§  361.     The  original  method. 
§  362.     Possessory  origin  of  this  method. 

§  363.     Ownership  of  land  unnecessary,  and  water  need  not  be  returned  to 
the  stream. 


xir  TABLE  OF  CONTENTS. 

[VoL  I,  sees.   1-1038.     Vol.  n,  sees.   1039-1470.] 

A.     BY  ACTUAL  DIVEESION. 
§  364.     Distinguished  from  the  statutory  method. 
§  365.     The  statutes  do  not  apply. 
§  366.     Settlement  on  stream  banks  not  alone  enough — No  preference  to 

riparian  owners. 
§  367.     Same. 

B.     TO  SECUEE  THE  BENEFIT  OF  RELATION. 
§  368.     Object  of  statutory  provisions. 
§  369.     Provisions  chiefly  declaratory  only. 
§  370.     Essential  requisites. 

C.     NOTICE. 
§  371.     Form  of  notice. 
§  372.     Contents  and  recording  of  notice. 
§  373.     Purpose  of  the  notice. 
§  374.     The  notice  operates  as  a  warning. 
§  375.     Failure  to  post  notice. 
§  376.     Notice  alone  not  enough. 

D.     BENEFICIAL  PURPOSE. 
§  377.     Necessity  for  bona  fide  intention. 
§  378.     What  constitutes  a  beneficial  purpose. 
§  379.     Motive. 
§  380.     Evidence  of  intention. 
§  381.     Intention  alone  not  enough. 

E.     DILIGENCE. 

§  382.     Necessity  for  diligence. 
§  383.     What  constitutes  diligence. 
§  384.     Delay  during  legal  proceedings. 
§  385.     Failure  to  use  diligence. 

F.     COMPLETION  OF  CONSTRUCTION  WORK. 

§  386.  Completion  of  work  preparatory  to  use  of  water. 

§  387.  What  constitutes  completion. 

§  388.  Means  of  diversion. 

§  389.  Diversion  alone. 

§  390.  Use  of  existing  ditches. 

§  391.  Same. 

§  392.  Changes  in  the  course  of  construction. 

Q.     RELATING  BACK. 
§  393.     Origin  of  the  doctrine. 
§  394.     Effect  of  relation. 

H.     ACTUAL  APPLICATION. 

§  395.     Necessity   for   actual   application   and   use  under   the   possessory 
origin  of  the  law. 


TABLE  OF  CONTENTS.  xv 

[Vol.  I,  sees.  1-1038.     Vol.  II,  sees.  1039-1470.] 

§  396.     Same — Under  the  view  now  developing. 

§  397.     Federal  requirements. 

§  398.     Recapitulation. 

§§  399-407.    .(Blank  numbers.) 

CHAPTER  18. 

HOW  AN    APPROPRIATION    IS    MADE— UNDER    STATE 
WATER  CODES. 

§  408.  The  Wyoming  method. 

§  409.  Authority  of  State  Engineer. 

§  410.  Vested  rights  protected. 

§  411.  Exclusiveness   of  the   statutory  method. 

§  412.  Application  for  permit. 

§  413.  Fees  and  ro-yalties. 

§  414.  Examination  of  application  and  issuance  of  permit. 

i  415.  Rejection  of  applications. 

§  416.  Same. 

§  417.  Nature  of  a  permit. 

§  418.  Prosecution  of  the  work. 

§  419.  Cancellation  of  permits  for  failure  of  work. 

§  420.  Issuance  of  certificate  of  appropriation. 

§  421.  Date  of  right. 

§  422.  California  Water-power  Act  of  1911. 

§  423.  Federal  requirements. 

§§  424-429.     (Blank  numbers.) 


CHAPTER  19. 

HOW   AN   APPROPRIATION    IS    MADE— NEW   FEDERAL 

SYSTEM. 

§  430.     Introductory. 

A.     RULES  OF  THE  FOREST  SERVICE  FOR  RIGHTS  OF  WAY,  ETC. 

§  431.     Rules  for  rights  of  way,  etc. 

§  432.     Revocable  Forest  Service  permits. 

B.     FEDERAL  RIGHT  OF  WAT  ACTS. 

§  433.  Appropriations  under  the  Federal  Right  of  Way  Acts. 

§  434.  Nature  of  rights  acquired  under  the  Right  of  Way  Acts. 

§  435.  The  doctrine  of  relation. 

§  436.  Bonds,  stipulations  and  royalties. 

§  437.  Forfeiture. 

§  438.  Conflicts  with  settlers. 

§  438a.  Water-power  regulations  of  1911  of  the  Forest  Service. 


xvi  TABLE  OF  CONTENTS. 

[Vol.  I,   *ecs.   1-1038.     Vol.  n,  sees.   1039-1470.] 

C.  RELATION  OF  THE  NEW  FEDERAL  SYSTEM  TO  THE  ACT  OF 

1866  AND  LOCAL  LAW. 
§  439.     Upon  reserved  land. 
§  44p.     Upon  unreserved  land. 

§  441.     Eecent  tendency  away  from  the  act  of  1866. 
§  442.     Conclusion. 
§§  443-451.     (Blank  numbers.) 


CHAPTER  20. 

MEANS     OF     USE— RESERVOIRS,     DITCHES,     FLUMES, 
PIPES  AND  OTHER  STRUCTURES. 

A.  ARTIFICIAL  WATER   CONDUITS,  ETC. 
§  452.     General. 

§  453.  Use  without  diversion. 

§  454.  Use  in  artificial  water  structures — Ditches,  flumes,  pipes  in  general. 

§  455.  The  ditch,  etc.,  is  an  easement. 

§  456.  Ditch  and  water-right  distinguished. 

§  457.  Water  in  artificial  waterworks  or  structures. 

B.  USE  OF  ARTIFICIAL  CONDUITS,  ETC. 
§  458.     Contracts  concerning  ditches. 

§  459.     Joint  use  of  ditch. 

§  460.     Repair  of  ditches. 

§  461.     Damage  from  breaking  ditches,  etc. 

§  462-.     Same — Floods. 

§  463.     Same. 

§§  464-472.     (Blank  numbers.) 


CHAPTER  21. 
LIMITATIONS  ON  QUANTITY  OF  WATER. 

A.     CAPACITY  OF  STRUCTURES. 
§  473.     Introductory. 
§  474.     The  original  claim. 

§  475.     Capacity  of  ditch — The  possessory  test. 
§  476.     Capacity  of  ditch  ceasing  to  be  a  measure. 
§  477.     Same. 

B.     BENEFICIAL  USE. 
§  478.     Beneficial  use — The  final  test. 
§  479.     Same — Even  if  less  than  capacity  of  ditch. 
§  480.     Time  at  which  beneficial  use  is  to  be  figured. 
§  481.     What  constitutes  waste. 
f  482.     Same. 


TABLE  OF  CONTENTS.  xvii 

[Vol.  I,  sees.  1-1038.     Vol.  II,  sees.   1039-1470.] 

C.     ANNUAL  INCEEASE  OF  USE. 

§  483.     Future  needs. 
§  484.     Same. 
§  485.     Same. 
§  485a.  Same. 

D.     DUTY  AND  MEASUREMENT   OF  WATER. 
§  486.     Measurement  of  water. 
§  487.     Duty  of  water. 

§  488.     Duty  of  water  as  affected  by  loss  in  transmission. 
§  489.     Summary. 
§§  490-495.     (Blank  numbers.) 


CHAPTER  22. 
LIMITATIONS  ON  CHANGE  OF  MODE  OF  ENJOYMENT. 

A.     GENERAL  PRINCIPLES. 

§  496.     The  right  is  independent  of  the  mode  of  enjoyment. 
§  497.     Same. 

§  498.     No  injury  to  others  allowed. 

§  499.     Right  of  change  chiefly  a  matter  upon  public  lands. 
§  500.     Freedom  of  change  gradually  passing  away. 

B.     CHANGE  OF  MEANS  OF  USE. 
§  501.     Change  of  ditches,  etc. 
§  502.     Same. 
§  503.     Same. 

C.     CHANGE  OF  POINT  OF  DIVERSION. 
§  504.     Change  of  diversion. 
§  505.     Same. 

§  506.     Statutory  restrictions. 
§  507.     Same. 

D.     CHANGE  OF  PLACE  OF  USE. 
§  508.     Change  of  place  of  use. 
§  509.     Statutory  restrictions. 
§  510.     Change  on  sale  of  water-right. 

E.     CHANGE  OF  PURPOSE  OF  USE. 
§  511.     Change  of  purpose. 
§  512.     Conclusion. 
§§  513-521.     (Blank  numbers.) 


xviii  TABLE  OF  CONTENTS. 

[Vol.  I,  lees.   1-1038.     Vol.  II,  sees.   1039-1470.] 

CHAPTER  23. 

POLLUTION. 

§  522.     Western  questions. 

§  523.     Under  the  common  law  of  riparian  rights. 

§  524.     Under  the  law  of  prior  appropriation. 

§  525.     Materiality  of  interference. 

§  526.     Same. 

§  527.     Mining  debris. 

§  528.     Priority. 

§  529.     Injunctions. 

§  530.     Conclusions. 

§§  531-535.     (Blank  numbers.) 


CHAPTER  24. 

ALIENATION  AND  DISPOSAL   OF   EIGHT— CONTRACTS- 
CONVEYANCES. 

A.     CONTEACTS  BETWEEN  PRIVATE  PARTIES  EXCLUSIVE  OF 

PUBLIC  SERVICE  COMPANIES.' 
§  536.     Right  of  contract. 
§  537.     Subject  matter  of  water  contracts. 
§  538.     Contracts   (continued). 
§  539.     Assignment. 

§  540.     Contracts  with   public   service   companies   are   governed  by  special 
rules. 

B.     CONVEYANCES. 

§  541.  Water-rights  may  be  conveyed. 

§  542.  Formalities  on  transfer. 

§  543.  Subject  matter  of  conveyance. 

§  544.  Construction  and  operation  of  conveyance. 

§  545.  Reservations. 

§  546.  Sales  of  uncompleted  works — After-acquired  property. 

§  547.  Sale  in  parts. 

§  548.  Lease  or  exchange  or  other  temporary  disposal. 

§  549.  Sales  of  "water-rights"  by  public  service  companies. 

C.     APPURTENANCE. 

§  550.  Whether  the  water-right  is  an  appurtenance  to  land. 

§  551.  Same. 

§  552.  Whether  passes  on  sale  of  land  when  appurtenant  thereto. 

§  553.  Upon  subdivision  of  land. 

§  554.  Appurtenance  .(concluded). 


TABLE  OF  CONTENTS. 
[Vol.  I,  MCS.   1-1038.     Vol.  II,  sees.   1039-1470.J 

D.     PAROL   SALE. 

§  555.     Parol  sales  of  possessory  rights  on  the  public  domain. 
§  556.     Parol  sales  and  licenses  in  equity. 
§  557.     Conclusion. 
§§  558-565.     (Blank  numbers.) 

CHAPTER.  25. 

LOSS  OF  RIGHT. 

A.     ABANDONMENT. 

§  566.  Introductory. 

§  567.  Abandonment  is  voluntary  and  a  question  of  fact. 

§  568.  Same  (examples). 

§  569.  Nonuser  merely  evidence  of  intention  to  abandon. 

§  570.  Same. 

§  571.  Discharged  waste  and  recapture. 

§  572.  Parol  sale  or  faulty  deed. 

§  573.  Failure  of  diligence  in  construction  work. 

B.     FORFEITURE. 

§  574.     Failure  to  comply  with  statute  in  making  an  appropriation. 
§  575.     Smith  v.  Hawkins. 
§  576.     Forfeiture  under  statutes. 
§  577.     Transitionary  state  of  the  law. 
§  578.     Conclusions  regarding  abandonment  and  forfeiture. 

C.     ADVERSE  USE  OR  PRESCRIPTION. 

§  579.  General. 

§  580.  Effect  of  adverse  use  or  prescription. 

§  581.  Extent. 

§  582.  Essentials. 

§  583.  Continuous. 

§  584.  Exclusive;  uninterrupted. 

§  585.  Open;  notorious. 

§  586.  Claim  of  right;  color  of  title. 

§  587.  Hostile  to  owner;  permission. 

§  588.  Invasion  of  right. 

§  589.  Chance  to  prevent. 

§  590.  Payment  of  taxes. 

§  591.  Against  the  United  States  or  the  State. 

§  592.  Conclusion. 

D.     ESTOPPEL. 

§  593.  Elements  of  estoppel  in  pais. 

§  594.  Estoppel  by  silence. 

§  595.  Same. 
§§  596-603.     (Blank  numbers.) 


xx  TABLE  OF  CONTENTS. 

[Vol.  I,  sees.  1-1038.     Vol.  II,  sees.  1039-1470.] 

CHAPTER  26. 

LOSS  OF  RIGHT  (CONTINUED)— EMINENT  DOMAIN. 

§  604.  Necessity  for  public  use. 

§  605.  Kequirement  of  hearing  and  compensation. 

§  606.  What  is  a  public  use. 

§  607.  Private  enterprise  as  public  use. 

§  608.  Clark  v.  Nash. 

§  609.  Same — State  statutes  and  decisions. 

§  610.  In  California. 

§  611.  Statement  of  the  rule  of  Clark  v.  Nash. 

§  612.  Practical  results. 

§  613.  Conditions  imposed. 

§  614.  The  French  Irrigation  System. 

§  615.  Procedure  and  miscellaneous. 

§  616.  A  question  of  procedure. 

§  617.  Same. 

§  618.  Same. 

§§  619-623.     (Blank  numbers.) 


CHAPTER  27. 

PROCEDURE. 

§  624.     Introductory. 

A.     PARTIES. 
§  625.     Cases  are  governed  by  the  relative  rights  of  the  parties  before  the 

court. 

§  626.     Eights  of  strangers  to  a  suit  cannot  be  bound. 
§  627.     Nor  can  rights  of  strangers  affect  the  result  between  the  parties 

litigant. 

§  628.     Eecurrence  of  the  principle  in  the  law  of  waters. 
§  629.     Joinder  of  parties. 
§  630.     Joinder  of  issue  between  the  parties. 

§  631.     Parties  (concluded). 
i 

B.     PLEADING  AND  PEACTICE. 

§  632.  Jurisdiction. 

§  633.  Joinder  of  causes  of  action. 

§  634.  Pleading  (continued) — Allegations  in  complaint. 

§  635.  Alleging  local  customs. 

§  636.  Evidence. 

§  637.  Damages. 

§  638.  Measure  of  damages. 

§  639.  Decree.  * 

§  640.  Miscellaneous  matters  of  practice. 


TABLE  OF  CONTENTS.  xxi 

[Vol.  I,  sees.   1-1038.     Vol.  II,  sees.   1039-1470.J 

C.     INJUNCTION. 

§  641.  Irreparable  injury. 

§  642.  Same — Injuria  sine  damno. 

§  643.  Prospective. 

§  644.  Laches. 

§  645.  Making  out  right  at  law. 

§  646.  Mandatory  injunctions.     (Abatement  of  nuisance  by  suit.)] 

§  647.  Defenses  to  injunction. 

§  648.  Balance  of  inconvenience  between  the  parties. 

§  649.  Same — Hardship  on  the  public. 

§  650.  Same — Conflict  between  mining  and  agriculture. 

§  651.  Same — Against  public  service  companies. 

§  652.  Preliminary  injunctions. 

§  653.  Injunction — (Conclusion), 

D.     OTHER  EQUITABLE   EEMEDIES. 
§  654.     Bills  to  quiet  title,  etc. 
§  655.     Specific  performance  and  allied  matters. 

E.     MISCELLANEOUS   EEMEDIES. 
§  656.     Actions  at  law. 

§  657.     Abatement  of  nuisance  by  act  of  party — Use  of  force. 
§  658.     Crimes. 
§§  659-665.     (Blank  numbers.) 


PART  IV. 

THE  COMMON  LAW.  OF  RIPARIAN  EIGHTS. 
CHAPTER  28. 

INTRODUCTORY. 

§  666.     Appropriation  and  the  common  law. 

§  667.     Ancient  possession — The  maxim  "Aqua  currit." 

§  668.     Prior  possession  even  if  not  ancient. 

§  669.     Priority  of  appropriation  enforced. 

§  670.     Priority  finally  displaced  by  equality. 

§  671.     Same. 

§  672.     Same. 

§  673.     Eiparian  rights  under  the  California  doctrine. 

§  674.     Conclusion. 

§§  675-683.      (Blank  numbers.) 


TABLE  OF  CONTENTS. 
[VoL  I,  sees.   1-1038.     Vol.  II,  sees.   1039-1470.] 

CHAPTER  29. 

FOUNDATIONS  OF  THE  SYSTEM  OF  RIPARIAN  RIGHTS. 

§  684.     Introductory. 

A.     GENEEAL. 
§  685.     The  civil  law. 

§  686.     The  common  law  borrowed  from  the  civil  law.  « 

§  687.     The  corpus  of  naturally  running  water  is  not  property. 
§  688.     Same — Publiti  juris,  etc. 
§  689.     But  one  may  own  a  right  to  its  flow  and  use — The  law  recognizes 

a  usufructuary  right. 

§  690.     When  taken  into  possession,  the  substance  becomes  private  property. 
§  691.     Systems  of  water  law  are  but  a  development  of  these  three  "first 

principles." 

B.     ACCESS  TO  THE  STREAM. 

§  692.     None  but  riparian  proprietors  have  access  to  the  stream. 
§  693.     Same. 
§  694.     Same. 
§  695.     Same. 

C.     THE   BIPABIAN   BIGHT   DOES   NOT    BEST    UPON    THE    MAXIM 

"CUJUS   EST   SOLUM." 
§  696.     The  cujus  est  solum  doctrine. 
§  697.     Same. 
§  698.     Same. 
§  699.     Besults. 
§§  700-708.     (Blank  numbers.) 

CHAPTER  30. 
NATURE  OF  RIPARIAN  RIGHT. 

§  709.     Natural  right. 

§  710.     Same. 

§  711.     Part  and  parcel  of  riparian  land. 

§  712.     The  right  is  usufructuary. 

§  713.     As  subject  of  grant  or  contract. 

§§  714-722.     (Blank  numbers.) 

CHAPTER  31. 
WHAT  PERSONS  AND  UPON  WHAT  WATERS. 

§  723.  Who  are  riparian  proprietors. 
§  724.  Landholders  less  than  in  fee. 
§  725.  Upon  what  waters — Watercourses. 


TABLE  OF  CONTENTS.  xxiii 

[Vol.  I,  sees.   1-1038.     Vol.  II,  sees.   1039-1470.] 


S  726.     Navigable  streams. 

§  727.     Interstate  streams. 

§  728.     Standing  water — Lakes — Ponds. 

§  729.     Percolating  water. 

§§  730-738.     (Blank  numbers.) 


CHAPTER  32. 

LIMITATIONS    ON   USE    BETWEEN    RIPARIAN   PROPRI- 
ETORS THEMSELVES  FOR  THEIR  OWN  LANDS. 

REASONABLE  USE. 

A.     CLASSIFICATION  OF  USES. 
§  739.     Equality  of  riparian  owners. 
§  740.     Natural  uses — (Use  to  support  life). 
§  741.     Origin  of  the  term  "natural  uses." 
§  742.     Irrigation  not  within  this  class. 
§  743.     Artificial  uses — (Business  uses). 
§  744.     Same. 

B.  EEASONABLE  USE. 

§  745.  Eeasonable  use  generally. 

§  746.  Eeasonable  use  for  power  purposes. 

§  747.  Same — In  California. 

§  748.  Reasonable  use  for  irrigation. 

§  749.  Same — Turner  v.  James  Canal  Co. 

§  749a.  Same. 

§  750.  Eeasonable  use  (concluded). 

C.  APPOETIONMENT. 
§  751.     Apportionment. 

§  752.     Apportionment  is  an  equitable  remedy. 
§  753.     Confined  to  the  parties  litigant. 

D.  MISCELLANEOUS. 
§  754.     Manner  of  use. 

§  755.     Eeturn  of  surplus. 

§  756.     Possibility  for  a  Eiparian  Administrative  System. 

§§  757-764.     (Blank  numbers.) 


xxiv  TABLE  OF  CONTENTS. 

£Vol.  I,  sees.  1-1038.     Vol.  II,  seci.   1039-1470.] 

CHAPTER  33. 

LIMITATIONS  ON  USE  OF  WATER  BETWEEN  RIPARIAN 
PROPRIETORS  THEMSELVES    (CONTINUED). 

USE  CONFINED  TO  RIPARIAN  LAND. 

§  765.  Introductory. 

§  766.  Use  confined  to  riparian  land. 

§  767.  Same.                                     . 

§  768.  What  is  riparian  land — Must  touch  the  stream. 

§  769.  Receding   from  the  stream — Eecession  of  land  title. 

§  770.  Same. 

§  771.  Same. 

§  772.  Same. 

§  773.  Within  the  watershed. 

§  774.  Bounded  by  reasonableness  in  each  case. 

§  775.  Conclusions  as  to  riparian  land. 

§§  776-794.     (Blank  numbers.) 

CHAPTER  34. 

PROTECTION   OF   RIPARIAN   RIGHT— AGAINST    OTHER 
RIPARIAN  OWNERS. 

§  795.  Damage  between  riparian  owners. 

§  796.  Possible  damage  to  use  of  complainant's  land  must   be  snown. 

§  797.  Authorities  quoted. 

§  798.  Eeductio  ad  absurdum. 

§  799.  Damage  to  a  reasonable  degree  not  wrongful. 

§  800.  Damage  to  excess  of  reasonable  degree. 

§  801.  Where  the  damage  is  during  complainant's  nonuse. 

§  802.  Declaratory   decree. 

§  803.  Conclusions. 

§§  804-813.     (Blank  numbers.) 

CHAPTER  35. 

PROTECTION  OF  RIPARIAN  RIGHT  AGAINST  NONRIPA- 
RIAN  OWNERS. 

§  814.     Difficulty  of  questions  involved. 

A.     IMPAIRMENT  OF  RIPARIAN  ESTATE  TO  ANY  DEGREE  WHAT- 
EVER BY  NONRIPARIAN  USE  IS  WRONGFUL. 

§  815.     Stated  generally,  nonriparian  owners  have  no  rights  in  streams. 
§  816.     Damage  to  present  use  immaterial. 


TABLE  OF  CONTENTS.  xxv 

[Vol.  I,  Sflcs.  1-1038.     Vol.  H,  sees.   1039-1470.] 

§  817.     Keasonableness  in  its  correlative  sense  is  immaterial. 
§  818.     The  wrong  (where  no  present  damage  to  use)   consists  in  the  de- 
terioration to  any  degree  of  the  riparian  estate. 
§  819.     Nonriparian  diversion  usually  held  per  se  a  detriment. 

B.     SOME  OPPOSING  AUTHORITIES. 

§  820.  Departures  from  the  common  law. 

§  821.  Some   rulings   under  the   common  law. 

§  822.  Some   California   decisions. 

§  823.  Some  rulings  in  other  common-law  courts. 

§  824.  Same. 

§  825.  Storm  waters. 

§  826.  Same. 

C.     CAN    THESE    MINORITY    RULINGS    BE    RECONCILED     TO 

PRINCIPLE. 

§  827.     The  answer  must  be  made  under  the  common  law. 

§  828.     Possible   distinction  between   diminution  of  flow   and   depreciation 
of  estate. 

§  829.     Same. 

§  830.     Same. 

§  831.     Application  of  the  distinction  by  confining  the  decision  to  the  par- 
ties litigant. 

§  832.     Same. 

D.     OTHER  RELATED  MATTERS. 

§  833.     Declaratory    decree. 

§  834.     Nonriparian  use  by  both  parties. 

§  835.     Conclusions. 

§  836.     Exception  where  underground  water  is  involved. 

§§  837-843.     (Blank  numbers.) 


CHAPTER  36. 

CONTRACTS  AND  CONVEYANCES  BY  A  RIPARIAN  PRO- 
PRIETOR. 

§  844.     General. 

§  845.     Grants  and  contracts  are  binding  between  the  parties  thereto. 
§  846.     Same. 

§  847.     But  as  affecting  noncontracting  riparian  proprietors,  grants  or  eon- 
tracts  or  sales  of  water  or  of  water-right  are  invalid. 
§  848.     Some   opposing  decisions. 

§  849.     How  far  the  opposing  eases  can  be  supported  upon  principle. 
§  850.     In  the  civil  law. 
§  851.     Conclusions. 
§§  852-860.     (Blank  numbers.) 


xxvi  TABLE  OF  CONTENTS. 

[Vol.  I,  sees.   1-1038.     Vol.  II,  sees.   1039-1470.] 

CHAPTER  37. 

LOSS  OF  RIPARIAN  RIGHT. 

A.     ABANDONMENT    AND    ADVERSE    USE.— AVULSION. 

§  861.     No  abandonment. 
§  862.     Avulsion. 
§  863.     Adverse  use. 

B.     EMINENT  DOMAIN. 
§  864.     Riparian  right  may  be  condemned. 
§  865.     Clark  v.  Nash. 
§  866.     Procedure  on  eminent  domain. 
§§  867-879.     (Blank  numbers.) 


CHAPTER  38. 

PROCEDURE. 

§  880.     General. 

§  881.     Parties. 

§  882.     Equitable  remedies. 

§  883.     Pleading  and  proof — Between  riparian  owners  themselves. 

§  884.     Same — Between  a  riparian  and  a  nonriparian  owner. 

§  885.     Pleading  (continued). 

§  886.     Actions  at  law. 

§  887.     Judgment  or  decree. 

§§  888-896.     (Blank  numbers.) 


CHAPTER  39. 

MISCELLANEOUS  RIPARIAN  RIGHTS. 

§  897.    Introductory. 

A.     NAVIGABLE    WATERS. 
§  898.     Shores  and  bed  of  navigable  waters. 
§  899.     Public   rights  in  navigable   streams. 
§  900.     Public  authority  over  navigation. 

B.     ACCRETION  AND  BOUNDARIES. 
§  901.     Accretion. 
§  902.     Islands. 
§  903.     Boundaries. 

C.     WHARFAGE  AND  OTHER  RIPARIAN  OR  LITTORAL  RIGHTS. 
§  904.     Access. 
§  905.     Wharfage,  etc. 


TABLE  OF  CONTENTS.  xsvii 

[Vol.  I,  sees.   1-1038.     Vol.  II,  sees.   1039-1470.]- 

. 

§  906.     Other  riparian  rights,  in  navigable  waters. 

§  907.     Fishing. 

§§  908-1006.     (Blank  numbers.) 


CHAPTER  40. 

COMPARISON  OF  THE  LAW  OF  APPROPRIATION  AND  OF 
RIPARIAN  RIGHTS. 

§  1007.  Purpose  of  this  chapter. 

§  1008.  First   principles. 

§  1009.  As  dependent  on  ownership  of  land. 

§  1010.  Contiguity  to  the  stream. 

§  1011.  Mode  of  acquisition. 

§  1012.  Beneficial  use. 

§  1013.  Preference  of  domestic  use. 

§  1014.  Equality  vs.  priority. 

§  1015.  In  California. 

§§  1016-1024.     (Blank  numbers.) 


CHAPTER  41. 

SOME   NOTES   ON   THE   EIPARIAN   SYSTEM    UNDER    THE   ROMAN 
LAW  AND  THE  MODERN  EUROPEAN  LAW  OF  WATERS. 

§  1025.     The  corpus  of  running  water. 

§  1026.     The   law   of   riparian   rights. 

§  1027.     Grants   by   riparian   proprietors. 

§  1028.     The  administrative,  condemnational,  and  public  land  system. 

§  1029.     Bibliography. 

§§  1030-1038.     (Blank  numbers.) 


xxviii  TABLE  OF  CONTENTS. 


[Vol.  I,  sees.  1-1038.     Vol.  II,  sees.   1039-1470.] 

PART  V. 

UNDERGROUND  WATER. 

CHAPTER  42. 
HISTORICAL. 

A.     ENGLISH  EULE. 
§  1039.     The  English  rule. 
§  1040.     Contrasted  with  the  common-law  rule  of  watercourse* 

B.     THE  AMERICAN  EULE. 

§  1041.  The  English  rule  modified. 

§  1042.  The  California  cases. 

§  1043.  Katz  v.  Walkinshaw. 

§  1044.  The  state  of  the  authorities.  . 

§  1045.  Same. 

§  1046.  The  rule  contended  for. 

§  1047.  Same. 

C.     SUCCEEDING  CALIFORNIA  CASES. 
§  1048.     McClintock  v.  Hudson. 
§  1049.     Cohen  v.  La  Canada  W.  Co. 
§  1050.     Montecito  etc.  Co.  v.  Santa  Barbara. 
§  1051.     Newport  v.  Temescal  Water  Co. 
§  1052.     Cohen  v.  La  Canada  Water  Co. 
§  1053.     Burr  v.  Maclay  R.  Co. 
§  1054.     Barton  v.  Riverside  W.  Co. 
§  1055.     Hudson  v.  Dailey. 
§  1056.     Los  Angeles  v.  Hunter. 
§  1057.     Miller  v.  Bay  Cities  W.  Co. 
§§  1058-1061.     Various  subordinate  rulings. 
§  1062.     In  the  district  court  of  appeal. 
§  1063.     Miscellaneous  recent  Eastern  rulings. 
§  1064.     Recapitulation  of  the  California  cases. 
§  1065.     Conclusions. 
§  1066.     Collection  of  recent  cases. 
§§  1067-1075.     (Blank  numbers.) 


TABLE  OF  CONTENTS.  xxlx 

[Vol.  I,  sees.  1-1038.     Vol.  II,   sees.   1039-1470.] 

CHAPTER  43. 

CLASSIFICATION  OF  UNDERGROUND  WATERS. 

§  1076.     Classification  of  underground  waters. 

A.  CONNECTED  WITH  A  WATERCOURSE  OR  SOME  OTHER  DEFI- 

NITE BODY  OF  WATER. 

§  1077.  Definite  known  underground  streams. 

§  1078.  The  subflow  of  a  stream. 

§  1079.  Subflow  is  a  part  of  the  stream. 

§  1080.  Separate  rights  in  subflow. 

§  1081.  Same.     (Mentone  Irr.  Co.  v.  Redlands  Co.) 

§  1082.  Percolations  tributary  to  watercourses. 

§  1083.  Interference  with  a  stream  in  the  reasonable  use  of  one's1  own  land. 

B.  DIFFUSED    PERCOLATING    WATER     UNCONNECTED     WITH     A 

STREAM. 

§  1084.     Diffused  ground-water. 

§  1085.     Diffused  ground-water  in  the  California  Coast  Range  valleys. 

§  1086.     Same — Underground  lakes  or  artesian  belts. 

§  1087.  Same — Underground  reservoirs  supplied  by  or  supplying  surface 
streams'. 

§  1088.     Same. 

§  1089.     Artesian  wells — Miscellaneous. 

§  1090.  Merger  of  the  rules  governing  these  different  classes  of  ground- 
water  with  each  other  and  with  the  common  law  of  riparian 
rights  upon  streams. 

§§  1091-1099.     (Blank  numbers.) 


CHAPTER  44. 

NATURE  OF  THE  RIGHT  IN  UNDERGROUND  WATER. 

§  1100.  No  longer  private  property  in  its  natural  state. 

§  1101.  Usufructuary. 

§  1102.  Confined,  by  the  necessity  of  access,  to  adjacent  landowners. 

§   1103.  Natural  right,  and  part  and  parcel  of  adjacent  land. 

§  1104.  Analogy  to  the  common-law  riparian  right. 

§  1105.  Same. 

§  1106.  New  rule  compared  to  the  law  of  prior  appropriation. 

§  1107.  Same. 

§  1108.  Same. 

§§  1109-1117.     (Blank   numbers.) 


xxx  TABLE  OF  CONTENTS. 

[VoL  I,  sees.  1-1038.     Vol.  II,  sees.  1039-1470.] 

CHAPTER  45. 

USE  CONFINED  TO  ONE 'S  OWN  LAND  ADJACENT  TO  THE 

SUPPLY. 

§  1118.     Basis  of  the  limitation  to  one's  own  land. 

§  1119.     A  question  of  fitness  of  purpose,  viz.,  the  benefit  of  one's  own  prop- 
erty, when  damaging  a  neighbor. 
§  1120..    Same — Malice  distinguished. 

§  1121.     The  benefit  of  one's  own  property  as  a  justification. 
§  1122.     This  is  the  chief  point  in  the  new  cases. 
§  1123.     Sale  of  water. 
§  1124.     Conclusions. 
§  1125.     Future  development. 
§§  1126-1132.     (Blank  numbers.) 


CHAPTER  46. 

REASONABLE  USE  BETWEEN  NEIGHBORING  LAND- 

OWNERS. 

§  1133.  Introductory. 

I  1134.  Equality  of  overlying  landowners. 

§  1135.  Must  be  for  the  benefit  of  the  land. 

§  1136.  A  question  of  degree. 

§  1137.  Apportionment. 

§  1138.  Declaratory  decree  during  nonuse. 

§  1139.  Means  of  use  of  the  land. 

§  1140.  Drainage. 

§  1141.  Importance  in  mining  regions. 

§  1142.  Statutory  regulation. 

§§  1143-1151.     (Blank  numbers.) 


CHAPTER  47. 
PROTECTION  OF  THE  RIGHT  TO  UNDERGROUND  WATER. 

A.     AGAINST  AN  EXCESSIVE  LOCAL  USE. 
§  1152.     Excessive  local  use. 

B.     BETWEEN  A  LOCAL  AND  AN  ALIEN  USE. 
§  1153.     No  question  of  reasonableness. 
§  1154.     Damage  will  not  be  implied. 
§  1155.     Prospective  damage  to  the  local  land. 


TABLE  OF  CONTENTS.  xxxi 

[Vol.  I,  sees.  1-1038.     Vol.  II,  sees.  1039-1470.] 

1156.  Declaratory  decree. 

1157.  Distant  use  of  surplus. 

1158.  Same — Not  an  absolute  "appropriation." 

1159.  Distant  use  by  both  parties. 
}  1160-1168.     (Blank  numbers.) 


CHAPTER  48. 

LOSS    OF   EIGHT,   PROCEDURE,   AND   MISCELLANEOUS 

MATTERS. 

§  1169.  Nonuse. 

§  1170.  Prescription. 

§  1171.  Public  use  estoppel. 

§  1172.  Contracts  concerning  underground  water. 

§  1173.  Evidence,  decrees,  etc. 

§  1174.  Conclusion. 

§  1175.  Same. 

§§  1176-1182.     (Blank  numbers.) 


PART  VI. 

ADMINISTRATIVE  SYSTEM,  AND  DETERMIN- 
ATION OF  RIGHTS,  UNDER  STATE  WATER 
CODES  AND  STATUTES. 

CHAPTER  49. 

THE  ADMINISTRATIVE  SYSTEM. 

§  1183.  Introductory. 

§  1184.  Legislation. 

§  1185.  Same. 

§  1186.  Supervision  of  State. 

§  1187.  Intermediate  subdivisions. 

§  1188.  Primary  subdivisions. 

§  1189.  Police  regulations. 

§  1190.  Issuing     new     permits,     determining     old     rights,     and     controlling 

changes. 

§  1191.  Jurisdiction  of  officers  usually  confined  to  natural  resources. 


xxxii  TABLE  OF  CONTENTS. 

[Vol.  I,  sees.  1-1038.     Vol.  II,  sees.   1039-1470.] 

§  1192.     Powers  of  water  officials  are  administrative  and  not  judicial. 

§  1193.     Vested  rights  protected. 

§  1194.     Decisions  of  water  officials  are  not  conclusive  upon  the  courts. 

§  1195.     Duties  of  water  officials. 

§  1196.     Actions  by  and  against  officials. 

§  1197.     Pay  of  water  officials. 

§  1198.     Water  commissioners  and  State  Engineer  in  California  and  other 

States  that  have  not  adopted  water  codes. 

§  1199.     Comment  of  United  States  Department  of  Agriculture. 
§§  1200-1205.     (Blank  numbers.) 


CHAPTER  50. 

DETERMINATION  OF  EXISTING  PRIORITIES  BY  ADMIN- 
ISTRATIVE OFFICERS. 

§  1206.  Wyoming  method. 

§  1207.  Peparatory  steps. 

§  1208.  Procedure. 

§  1209.  Certificates. 

§  1210.  Constitutionality  of  these  statutes'. 

§  1211.  How  far  excluding  proceedings  in  court. 

§§  1212-1221.     (Blank  numbers.) 


CHAPTER  51. 

DETERMINATION  OF  PRIORITIES  BY  SPECIAL  PROCEED- 
INGS IN  COURT. 

§  1222.  Colorado  method. 

§  1223.  Preparatory  steps. 

§  1224.  Procedure  on  suit. 

§  1225.  Decree  and  certificate. 

§  1226.  Constitutionality  of  these  statutes. 

§  1227.  Same — Due  process  of  law. 

§  1228.  Nature  of  the  proceedings. 

§  1229.  Carrier  or  consumer. 

§  1230.  Scope  of  proceedings. 

§  1231.  Form  of  decree,  costs,  etc. 

§  1232.  Effect  of  decree — Time  limitations. 

§  1233.  Same — Res  adjudicata. 

§  1234.  Conclusion. 

§  1236.  Comment  of  Department  of  Agriculture. 

§§  1236-1244.     (Blank  numbers.) 


TABLE  OF  CONTENTS.  xxxiii 

[Vol.  I,  sees.  1-1038.     Vol.  H,  sees.  1039-1470.] 


PART 

DISTRIBUTION  OF  WATER. 

CHAPTER  52. 
INTRODUCTORY. 

§  1245.  Purpose  of  this  chapter. 

§  1246.  Development  of  distributing  systems. 

§  1247.  Contract  regulation. 

§  1248.  Public  ownership. 

§  1249.  Public  control  without  public  ownership. 

§  1250.  Conclusion. 

§§  1251-1259.     (Blank  numbers.) 


CHAPTER  53. 
NATURE  OF  PUBLIC  SERVICE. 

A.     PUBLIC  SERVICE. 

§  1260.     Property  devoted  to  the  service  of  the  public. 

§  1261.     What  constitutes  public  service? 

§  1262.  Theory  of  the  law  of  public  service — Sovereignty  and  not  pro- 
prietorship— Public  control  as  distinguished  from  public  owner- 
ship. 

§  1263.     The  common  law. 

§  1264.     Constitutional  declaration. 

§  1265.     Same. 

B.     PRIVATE  SERVICE. 

§  1266.  Mutual  companies — Business  not  subject  to  public  control. 

§  1267.  Mutual   companies    (continued). 

§  1268.  Stock  in  mutual  companies. 

§  1269.  Transfer  of  stock  in  mutual  companies. 

C.     CHANGE  OF  CHARACTER  OF  SERVICE. 
§  1270.     Change   from   private   to   public   service. 
§  1271.     Change  from  public  to  private  service. 
§  1272.     Abandonment  of  all  service. 
§§  1273-1278.     (Blank  numbers.) 


xxxiv  TABLE  OF  CONTENTS. 

[Vol.  I,  sees.   1-1038.     Vol.  II,  sees.   1039-1470.] 

CHAPTER  54. 

DUTIES  OF  PUBLIC  SERVICE. 

§  1279.     Seasonable  service  to  all. 

§  1280.     Must  serve  all  the  public  to  the  extent  of  capacity   (compulsory 

service). 

§  1281.     Or  some  class  of  the  public. 
§  1282.     With  adequate  facilities. 
§  1283.     Equally  and  without  discrimination. 
§  1284.     Without  priorities. 
§  1285.     Same. 

§  1286.     Without  unreasonable  conditions. 
§  1287.     Upon  tender  of  a  reasonable  rate. 
§  1288.     Irrigation  rates. 
§  1289.     Same. 

§  1290.     Miscellaneous  duties. 
§§  1291-1297.     (Blank  numbers.) 


CHAPTER  55. 
PUBLIC  REGULATION. 

1298.  Public  boards  or  commissions.  • 

1299.  Basis  of  the  power  to  fix  rates. 

1300.  The  statutes. 

1301.  Proceedings  before  the  board. 

1302.  Rates  presumed  valid  when  fixed  by  the  board. 

1303.  Jurisdiction  of  equity  against  improper  action  by  the  board. 
1303a.  Same. 

1304.  What  is  a  fair  return? 

1305.  What  is  the  value  of  the  property? 
I  1306-1314.     (Blank  numbers.) 


CHAPTER  56. 

RIGHTS  OF  CONSUMERS  FROM  DISTRIBUTORS  BASED 
UPON  CONTRACT. 

A.     VALIDITY  OP  CONTRACTS  GENERALLY. 
§  1315. .   The  practical  situation. 
§  1316.     Contracts  not  per  se  invalid. 
§  1317.     But  contract  provisions  that  are  unreasonable  or  conflict  with  the 

distributor's  public  duties  are  invalid. 
§  1318.     Same. 


TABLE  OF  CONTENTS.  xxxv 

[Vol.  I,  sees.  1-1038.     Vol.  II,  sees.  1039-1470.] 

B.     BATE  CONTRACTS. 

§  1319.     Contracts  fixing  rates  in  the  absence  of  public  rate-fixing. 
§  1320.     Effect  of  transfer  of  water  system  upon  contract  rates. 
§  1321.     Effect  of  public  rate-fixing  upon  contract  rate-fixing. 
§  1322.     Contracts  between  companies  and  cities. 
§  1323.     Contracts  by  the  United  States  under  the  policy  of  conservation. 

C.     CONTRACTS  AS  GRANTING  ESTATES. 
§  1324.     Whether  contracts  do  or  can  grant  "easements"  or  "water-rights" 

to  consumers,  or  only  service  rights. 

§  1325.     The  present  California  rule — Leavitt  v.  Lassen  Irr.  Co. 
§  1326.     Whether  charge  can  be  made  for  a  'water-right"  in  addition  to 

the  rates. 
§  1327.     Comments. 

D.     CONTRACTS  ARE   CONCURRENT   ONLY. 
§  1328.     Contract  rights,  when  valid,  are  but  concurrent  with  the  noncon- 

tract  rights. 
§§  1329-1337.     (Blank  numbers.) 


CHAPTER  57. 

CONSUMERS  AS  APPROPRIATORS— PUBLIC  OWNERSHIP 
AS  DISTINGUISHED  FROM  PUBLIC  CONTROL. 

§  1338.  The  rule  in  the  desert  States. 

§  1339.  Public  ownership  of  water  resources. 

§  1340.  Statement  of  the  authorities. 

§  1341.  Same — Continued. 

§  1342.  Same — Continued. 

§  1343.  Results  of  the  rule — Priorities. 

§  1344.  Same. 

§  1345.  Parties  to  actions. 

§  1346.  Change  of  use. 

§  1347.  Conclusion. 

§§  1348-1355.     (Blank  numbers.) 


CHAPTER  58. 
IRRIGATION  DISTRICTS. 

§  1356.  Purpose. 

§  1357.  California. 

§  1358.  Operation  of  the  system  in  California. 

i  1359.  Colorado. 


TABLE  OF  CONTENTS. 
[Vol.  I,  sees.  1-1038.     Vol.  II,  sees.  1039-1470.] 


§  1360.  Idaho. 

§  1361.  Kansas. 

§  1362.  Montana. 

§  1363.  Nebraska. 

§  1364.  Nevada. 

§  1365.  New  Mexico. 

§  1366.  Oregon. 

§  1367.  Texas. 

§  1S68.  Utah. 

§  1369.  Washington. 

§  1370.  Wyoming. 

§  1371.  Conclusion. 

§§  1372-1379.     (Blank  numbers.) 


CHAPTER  59. 
STATE  IRRIGATION  UNDER  THE  CAREY  ACT. 

!  1380.  Sources  of  information. 

§  1381.  The  act  of  Congress. 

§  1382.  State  statutes. 

§  1383.  Initiation  of  projects. 

§  1384.  Results  so  far  obtained. 

§  1385.  Prices  under  Carey  Act  projects. 

§§  1386-1393.     (Blank  numbers.) 


CHAPTER  60. 
NATIONAL  IRRIGATION. 

§  1394.  The  Reclamation  Act. 

§  1395.  Acquisition  and  protection  of  Federal  water-right*. 

§  1396.  Power  of  the  Secretary  of  the  Interior. 

§  1397.  Acts  of  Congress,  61st  Session   (1909-10). 

§  1398.  Acts  of  Congress,  62d  Session  (1910-11). 

§  1399.  Progress  of  the  work. 

§§  1400-1408.     (Blank  numbers.) 


TABLE  OF  CONTENTS.  xxxvii 

[Vol.  I,  aecs.   1-1038.     Vol.  II,  sect.   1039-1470.] 

CHAPTER  61. 

REGULATIONS  OF  THE  DEPARTMENT  OF  THE  INTERIOR 
UNDER  THE  RECLAMATION  ACT. 

General  information. 
Withdrawals  and  restorations. 
Additional  entries. 
Cancellation. 

Widows  and  heirs  of  entryman. 
Control  of  sublaterals. 

Water-rights  for  lands  in  private  ownership. 
Vested  water-rights. 
Corporation  lands. 

Reclamation  of  lands  in  private  ownership. 
Cancellation  of  water-right. 
Water-right  application. 
Water-right  charges. 

Regulations  as  to  the  collection  of  reclamation  water-right  charges  by  re- 
ceivers of  public  moneys. 
Desert  land  entries  within  a  reclamation  project. 


CHAPTER  62. 

WATER  USERS  ASSOCIATIONS  UNDER  THE  RECLAMA- 
TION SERVICE. 

§  1409.  Sources  of  information. 

§  1410.  Nature  of  Water  Users  Associations. 

§   1411.  Articles  of  incorporation  and  by-laws. 

§  1412.  Stock  subscriptions  and  certificates. 

§  1413.  Assessments. 

§  1414.  Private  holdings — Excess  lands. 

§  1415.  Contract  with  Secretary  of  the  Interior. 

§  1416.  Completion  of  organization. 

§  1417.  Water-rights  applications. 

§   1418.  Miscellaneous. 

§§  1419-1427.     (Blank  numbers.) 


CHAPTER  63. 
WATER  USERS  ASSOCIATIONS  (CONTINUED). 

By  Morris  Bien. 


zxxviii  TABLE  OF  CONTENTS. 

[Vol.  I,  sees.   1-1038.     Vol.  II,   sees.   1039-1470.] 

PAET  VIIL 

STATUTES. 

§  1428.  DIGEST  OF  STATUTES. 

Introduction. 

§  1429.    FEDERAL  STATUTES. 

Constitution. 

Act  of  1866. 

Desert  Land  Act. 

Other  assurances  of  local  law. 

Withdrawal  Acts. 

Right  of  Way  and  Reservoir  Site  Acts. 

Water-power  projects  on  navigable  waters. 

Carey  Act. 

National  Irrigation  Act. 

Debris  Act. 

Irrigation  investigation. 

The  public  survey. 

Miscellaneous. 

§  1430.    ALASKA  STATUTES. 
§  1431.    ARIZONA  STATUTES. 

Constitution. 

Declaration  of  public  ownership. 

Miscellaneous. 

§  1432.     CALIFORNIA  STATUTES. 

Constitution. 

Declaration  of  State  or  public  ownership. 

Administration. 

Concerning  riparian  rights  of  private  land. 

Appropriation  of  water  on  public  land. 

Water-power  Act  of  1911, 

Interstate  waters. 

Percolating  water. 

Mineral  waters. 

Navigable  waters. 

Hydraulic  mining. 

Eminent  domain. 

Public  service — Water  companies  and  consumers — 'Constitution. 

Public  service — Civil  Code. 


TABLE  OF  CONTENTS. 

[Vol.  I,  sees.  1-1038.     Vol.  n,  ieci.  1039-1470.] 

Public  service — General  statutes. 
Mutual  companies. 
Municipal  ownership. 
Irrigation  district  statutes. 
Eeclamation  districts. 
Injunctions. 
Penal   statutes. 
Public  Health  Act. 
Miscellaneous. 

§  1433.    COLORADO  STATUTES. 

Declaration  of  public  ownership. 

Appropriation. 

Preferences  and  pro-rating. 

Concerning  riparian  rights. 

Ditches  on  private  land — Eminent  domain. 

Administration. 

Determination  of  existing  priorities. 

Change  of  point  of  diversion. 

Method  of  appropriating. 

Fees  of  State  Engineer. 

Public  service — Water  companies  and  consumers. 

Crimes. 

Irrigation  districts. 

Miscellaneous. 

§  1435.    IDAHO  STATUTES.  • 

Declaration  of  State  ownership. 

Appropriation. 

Concerning  riparian  rights. 

Ditches  on  private  land. 

Eminent  domain. 

Preferences  and  pro-rating. 

Administration. 

Determination  of  existing  priorities. 

Method  of  appropriating. 

Public  service — Water  companies  and  consumers. 

Irrigation  districts. 

Measurement  of  water. 

Crimes — Police  regulations. 

Carey  Act. 

Miscellaneous. 

§  1436.     KANSAS  STATUTES. 

Concerning  riparian  rights. 

Administration. 

Eminent  domain — Canals  on  private  land. 


xl  TABLE  OF  CONTENTS. 

[Vol.  I,  tecs.  1-1038.     Vol.  II,  sec».  1039-1470.] 

Preferences. 

Method  of  appropriating. 

Public  service — Water  companies  and  consumers. 

Underground  water. 

Irrigation  districts. 

Miscellaneous. 

§  1437.    MONTANA  STATUTES. 

Declaration  of  State  ownership. 

Concerning  riparian  rights. 

Administration. 

Method  of  appropriating. 

Determination  of  existing  priorities. 

Public  service — Water  companies  and  consumers. 

Irrigation  districts. 

Miscellaneous. 

§  1438.    NEBRASKA  STATUTES. 

Declaration  of  public  ownership. 

Appropriation. 

Concerning  riparian  rights. 

Ditches  on  private  land. 

Eminent  domain. 

Preferences  and  pro-rating. 

Administration. 

Determination  of  existing  priorities.  , 

Method  of  appropriating. 

Measurement  of  water — Beneficial  use — Forfeiture  for  nonuse. 

Public  service — Water  companies  and  consumers. 

Mutual  companies. 

Federal  water-rights. 

Water-power. 

Crimes. 

Irrigation  districts. 

Percolating  water. 

Fees  of  State  Engineer. 

Miscellaneous. 

§  1439.    NEVADA  STATUTES. 

Declaration  of  State  ownership. 

Concerning  riparian  rights. 

Determination  of  existing  priorities. 

Method  of  appropriating. 

Fees  of  State  Engineer. 

Duty  and  measurement  of  water. 

Public  service — Water  companies  and  consumers. 

Crimes  and  police  regulations. 


TABLE  OF  CONTENTS.  xli 

[Vol.  I,  sees.  1-1038.     Vol.  II,  sees.   1039-1470.] 

Irrigation  districts. 
Miscellaneous. 

§  1440.    NEW  MEXICO  STATUTES. 
Declaration  of  public  ownership. 
Appropriation. 
Concerning  riparian  rights. 
Administration. 

Determination  of  existing  priorities. 
Method  of  appropriating. 
Duty  and  measurement  of  water. 
Eminent  domain. 
Miscellaneous. 
Irrigation  law  of  1907. 
Irrigation  districts. 
Miscellaneous. 

§  1441.    NORTH  DAKOTA  STATUTES. 

Declaration  of  State  ownership. 

Concerning  riparian  rights. 

Administration. 

Determination  of  existing  priorities. 

Method  of  appropriating. 

Duty  and  measurement  of  water. 

Fees  of  State  Engineer. 

Miscellaneous. 

§  1442.     OKLAHOMA  STATUTES. 

Declaration  of  public  ownership. 
Concerning  riparian  rights. 
Eminent  domain. 
Administration. 

Adjustment  of  existing  priorities. 
Method  of  appropriating. 
Measurement  of  water. 
Miscellaneous. 

§  1443.     OREGON  STATUTES. 

Concerning  riparian  rights. 

Irrigation  districts. 

Public  service — Water  companies  and  consumers. 

Miscellaneous. 

Water  law  of  Oregon  of  1909. 

Laws  of  1911. 

Practical  working  of  the  Oregon  water  law. 

§  1444.     PHILIPPINE  ISLANDS. 


xlii  TABLE  OF  CONTENTS. 

[Vol.  I,  sees.   1-1038.     Vol.  II,  sees.   1039-1470.] 

§  1445.     SOUTH  DAKOTA  STATUTES. 

Declaration  of  public  ownership. 

Concerning  riparian  rights. 

Ditches  on  private  land — Eminent  domain. 

Administration. 

Determination  of  existing  priorities. 

Method  of  appropriating. 

Fees  of  State  Engineer. 

Duty  and  measurement  of  water. 

Public  service — Water  companies  and  consumers. 

Miscellaneous. 

Practical  working  of  the  South  Dakota  water  law. 

§  1447.    UTAH  STATUTES. 

Declaration  of  public  ownership. 

Concerning  riparian  rights.  . 

Ditches  on  private  land — Eminent  domain. 

Preferences  and  pro-rating. 

Administration. 

Determination  of  existing  priorities. 

Method  of  appropriating. 

Measurement  of  water. 

Fees  of  State  Engineer. 

Irrigation  districts. 

Miscellaneous. 

§  1448.    WASHINGTON  STATUTES. 

Eminent  domain. 

Eiparian  rights. 

Supervision  of  appropriators. 

Adjustment  of  existing  priorities. 

Method  of  appropriating. 

Public  service — Water  companies  and  consumers. 

Irrigation   districts. 

Irrigation  on  State  lands. 

Miscellaneous. 

§  1449.    WYOMING  STATUTES. 

Declaration  of  State  ownership. 

Appropriation. 

Concerning  riparian  rights. 

Ditches  on  private  land — Eminent  domain. 

Preferences. 

Administration. 

Determination  of  existing  priorities. 


TABLE  OF  CONTENTS.  sliii 

[Vol.  I,  sees.  1-1038.     Vol.  II,  sees.  1039-1470.] 

Method  of  appropriating. 

Fees  of  State  Engineer. 

Duty  and  measurement  of  water. 

Public  service — Water  companies  and  consumers. 

Irrigation  districts. 

Carey  Act. 

Miscellaneous. 


PART  IX. 

FORMS. 

§  1459.     FEDERAL  FORMS. 

EECLAMATION  SERVICE  FORMS. 
Notice  of  appropriation  by  the  United  States. 
Water  Users  Associations. 

RIGHT   OF   WAY   AND   RESERVOIR   SITE  FORMS. 
Forms  of  General  Land  Office,  numbers  1  to  12. 

FOREST  SERVICE  WATER-POWER  FORMS. 

Form  58.  Application  for  preliminary  water-power  permit. 

Form  59.  Preliminary  water-power  permit. 

Form  60.  Application  for  final  water-power  permit. 

Form  61.  Water-power  stipulation. 

Form  62.  Final  water-power  permit. 

Form  63.  Transmission  line  permit. 

§  1460.     CALIFORNIA  FORMS. 
Notice  of  appropriation. 

§  1461.     COLORADO  FORMS. 

Form  of  title  of  map. 

Statement  for  ditch.  '/ 

Filings  for  pipe-lines. 

Filings  for  seepage  ditches. 

Statement  for  reservoir. 

Engineer's  affidavit. 

Changes,  enlargements  and  extensions. 

Amended  filings. 

Preliminary  filings. 

Certificate  on  map. 


xliv  TABLE  OF  CONTENTS. 

[Vol.  I,  tecs.   1-1038.     Vol.  II,  sees.   1039-1470.] 

Certificate  on  duplicate. 

Certificate  for  two  or  more  sheets. 

Sheets  No.  2,  No.  3  (etc.),  to  be  filed  with  State  Engineer. 

Duplicate  of  sheet  No.  1,  to  be  filed  with  county  clerk. 

Sheets  No.  2,  No.  3  (etc.),  to  be  filed  with  the  county  clerk. 

Fee  list. 

§  1462.     IDAHO  FORMS. 

Application  for  permit  to  appropriate  the  public  waters  of  the  State  of 
Idaho. 

Notice  of  proof  of  completion  of  works. 

Notice  of  proof  of  application  of  water  to  beneficial  use. 

Notice  of  publication. 

Notice  for  publication — Notice  of  proof  of  application  of  water  to  bene- 
ficial use. 

Notice  of  proof  of  completion  of  works  and  application  of  water  to  bene- 
ficial use. 

Proof  of  completion  of  works — Deposition  of  holder. 

Proof  of  completion  of  works — Deposition  of  witness. 

Proof  of  application  of  water  to  beneficial  use — Deposition  of  holder. 

Proof  of  application  of  water  to  beneficial  use — Deposition  of  witness. 

Report  of  water  commissioner. 

Certificate  of  completion  of  works. 

Water  license. 

§  1463.    NEBRASKA    FORMS. 

Application  for  a  permit  to  appropriate  the  waters  of  the  State  of  Nebraska. 

Township  plats — Showing  line  of  ditch  or  canal. 

Application  for  permit  to  appropriate  the  waters  of  the  State  of  Nebraska 

for  power. 

Township  plats — Showing  course  of  stream  and  location  of  works. 
Petition  for  a  permit  to  relocate  irrigation  works. 
Township  plats — Showing  line  of  ditch  or  canal. 
Application  for  a  permit  to  construct  drainage  works. 
Township  plats — Showing  course  of  canal  and  location  of  lake. 
Claim  for  the  waters  of  the  State  of  Nebraska. 
Township  plats — Showing  line  of  ditch  or  canal. 
Proof  of  appropriation  of  the  waters  of  the  State  of  Nebraska. 
Proof  of  appropriation  of  the  waters  of  the  State  of  Nebraska  for  power. 
Certificate  of  appropriation  of  water. 

§  1464.     NEVADA   FORMS. 
Application  for  permit  to  appropriate  the  public  waters  of  the  State  of 

Nevada. 
Notice  of  application  for  permission  to  appropriate  the  public  waters  of  the 

State  of  Nevada. 

Proof  of  application  of  water  to  beneficial  use. 
Proof  of  the  appropriation  of  water. 


TABLE  OF  CONTENTS.  xlv 

[Vol.   I,   tecs.   1-1038.     Vol.  n,   sec*.   1039-1470.] 

Application  for  permission  to  change  the  point  of  diversion,  manner  of  use, 

point  of  use. 
Certificate  of  appropriation  of  water. 

§  1465.     NEW  MEXICO   FORMS. 

Application  for  permit  to  appropriate  the  public  waters  of  the  territory  of 
New  Mexico. 

Approval  of  Territorial  Engineer. 

Territorial  Engineer's  instructions  and  explanations  for  filling  out  applica- 
tion blanks. 

Bond. 

Notice  of  application  for  permit. 

Certificate  of  construction. 

License  to  appropriate  water. 

§  1466.    NORTH  DAKOTA  FORMS. 

Application  for  a  permit  to  appropriate  water  within  the  State  of  North 

Dakota. 

Application  for  a  permit — Enlargement. 
Notice  of  intention  to  appropriate  water. 
Proof  of  publication. 

§  1467.    OREGON  FORMS. 

State  Engineer's  instructions  and  suggestions. 

Application  for  a  permit  to  appropriate  the  public  waters  of  the  State  of 
Oregon. 

Application  for  a  permit  to  appropriate  the  public  waters  of  the  State  of 
Oregon  [enlargement  of  existing  works]. 

Application  for  a  permit  to  construct  a  reservoir  and  to  store  for  beneficial 
use  the  unappropriated  waters  of  the  State  of  Oregon. 

Petition  for  determination  of  water-rights. 

Notice  of  proceedings  to  determine  water-rights. 

State  Engineer's  instructions  accompanying  notice  of  adjudication  of  water- 
rights. 

Statement  and  proof  of  claimant  in  adjudication  of  rights. 

Notice  of  completion  of  testimony. 

Certificates. 

§  1468.     SOUTH  DAKOTA  FORMS. 

Application  for  a  permit  to  appropriate  water  within  the  State  of  Soutfi 

Dakota. 
Enlargement — Application   for   a   permit   to  appropriate  water  within   the 

State  of  South  Dakota. 
Published  notice  of  application. 
Proof  of  publication. 
Notice  of  completion  of  works. 


xlvi  TABLE  OF  CONTENTS. 

[Vol.  I,  sees.  1-1038.     Vol.  II,  sees.   1039-1470.] 

Certificate  of  examination  of  works. 

Certificate  of  construction  of  works. 

Notice  of  application  of  water  to  beneficial  use. 

Certificate  of  application  of  water  to  beneficial  use — Deposition  of  holder. 

Water  license. 

Dry  draw  filings. 

Dry  draw  certificate. 

§  1469.    UTAH  FORMS. 

Irrigation — Application  to  appropriate  water. 
Application  for  other  purposes. 
Irrigation — Proof  of  appropriation  of  water. 
Certificate  of  appropriation  of  water. 

§  1470.    WYOMING  FORMS. 

State  Engineer's  instructions  and  suggestions  to  applicants  for  permits  to 

appropriate  water. 
Application  for  a  permit  to  divert  and  appropriate  the  water  of  the  State 

of  Wyoming. 
Enlargement — Application  for  a  permit  to  divert  and  appropriate  the  water 

of  the  State  of  Wyoming. 
Application  for  a  permit  to  construct  the Eeservoir,  and  to  store  the 

unappropriated  water  of  the  State  of  Wyoming. 
Ditch  proof  of  appropriation  of  water. 
Eeservoir  proof  of  appropriation  of  water. 
(Adjudication)  proof  of  the  appropriation  of  water. 
Certificate  of  appropriation  of  water. 


TABLE  OF  STATUTES  CITED. 

[A  table  of  statutes  cited  is  contained  at  the  end  of  each  State  in  Part  VIII.] 


TABLE  OF  CASES  CITED. 

[The  table  of  cases  cited  is  contained  in  Volume  IE.] 


INDEX. 

[An  index  to  both  volumes  is  contained  in  Volume  EL] 


WATER   RIGHTS 


IN  THE 


WESTERN    STATES, 


PAET  I. 

FIEST  PKINCIPLES. 

CHAPTER  1. 
RUNNING  .WATER. 

§  1.  Classification  of  waters. 

§  2.  The  negative  community. 

§  3.  Development  in  the  common  law. 

§  4.  American  authorities. 

§  5.  Common  or  public. 

§  6.  State  in  trust  for  the  people. 

§  7.  Conclusion. 

§§  8-14.     (Blank  numbers.) 

(3d  ed.) 

§  1.  Classification  of  Waters. — From  the  point  of  view  of  the 
law,  occurrences  of  water  consist  of  two  great  classes:  Those 
definite  in  form  and  occurrence,  and  those  diffused,  indefinite 
in  form  and  occurrence.  The  definite  class  includes  running  water 
(watercourses,  surface  or  subterranean)  and  standing  water 
(lakes  and  ponds).  The  indefinite  class  includes  diffused  surface 
water  (rain  water,  swamps,  etc.,  the  sea),  and  diffused  under- 
ground water  (percolating  water).  It  is  with  definite  bodies  of 
running  water,  that  is,  watercourses,  that  the  law  has  most  to  do. 

The  law  of  watercourses 'is  a  law  of  streams  as  natural  re- 
sources. The  water  running  therein  unrestrained  is  the  property  of 
no  one,  but  a  portion  of  it  taken  out  of  the  stream  and  confined  in 
the  possession  of  an  individual  becomes  the  taker's  private  property, 

Water  Rights— 1  (1) 


2     (3d  ed.)  Pt.  I.     FIRST  PRINCIPLES.  §  2 

belonging  to  him  while  under  his  possession  and  control;  and  the 
law  of  watercourses  is  a  development  of  the  rules  under  which  one 
may  thus  take  of  the  water  and  make  it  his  own.  There  is  a  large 
body  of  law  specifying  who  may  avail  themselves  of  this  privilege 
and  to  what  limitations  they  are  subject,  forming,  in  the  common 
law,  "the  law  of  riparian  rights,"  and  in  the  West,  "the  law  of 
prior  appropriation."  It  is  our  object  here,  in  this  first  part,  to 
consider,  in  its  elementary  lines,  this  framework  of  the  law  of 
watercourses;  leaving  to  later  presentation  the  rules  of  "riparian 
rights"  or  "appropriation"  that  have  been  built  around  it.1 

(3d  ed.) 

§  2.  The  Negative  Community. — In  the  Institutes  of  Justinian 
it  is  declared  concerning  things :  ' '  They  are  the  property  of  some- 
one or  no  one."2  As  further  expressed  in  the  Institutes,  "By  nat- 
ural law  these  things  are  common  to  all,  viz. :  Air,  running  water, 
the  sea  and  as  a  consequence  the  shores  of  the  sea."3  Comment- 
ing on  this  Vinnius  says:  "Things  common  are  such  because, 
while  by  nature  being  things  everyone  has  use  for,  they  have 
not,  as  yet,  come  into  the  ownership  or  control  of  anyone."* 
That  is,  they  are  the  property  of  no  one,  within  the  first  quota- 
tion from  the  Institutes. 

This  classification  of  running  water  with  what  has  been  called 
"the  negative  community,"  such  as  the  air,  runs  through  the 
civil-law  authorities.  Pothier's  exposition  of  it  is  as  follows:5 

"The  first  of  mankind  had  in  common  all  those  things  which 
God  had  given  to  the  human  race.  This  community  was  not  a 
positive  community  of  interest,  like  that  which  exists  between 
several  persons  who  have  the  ownership  of  a  thing  in  which  each 
has  his  particular  portion.  It  was  a  community  which  those 
who  have  written  on  this  subject  have  called  a  negative  com- 

1  Acknowledgment  is   made   to   the  2,  tit.   1,  see.   1.     Mr.  Ware   (Ware's 
Harvard   Law   Review,   to    which    the  Roman  Water  Law)   gives  chiefly  the 
writer    contributed    part    of    the    fol-  Pandects    or    Digest,    and     does     not 
lowing   chapters.     22     Harvard     Law  give  this  passage  in  the  Institutes. 
Review,   190.  4  "Communia   sunt    quae   a    natura 

2  "Vel    in    nostro    patrimonio    vel  ad   omnium  usum   prodita,   in  nullius 
extra      nostrum      patrimonium."      As  adhuc    ditionem    aut    dominium    per- 
translated  in  Lux   v.  Haggin,  69  Cal.  venerunt."     Quoted  in  Mason  v.  Hill, 
315,  10  Pac.  674.  5    Barn.   &  Adol.    1,    110    Eng.    Re- 

3  "Et    quidem    natural!    jure,    com-  print,  692. 

munia  sunt  omnium  haec:  aer  et  aqua  5  Pothier,  Traite  du  Droit  de  Pro- 

profluens,  et  mare,  et  per  hoc,  littora       priete,  No.  21. 
maris."     Institutes   of   Justinian,   lib. 


§  a  Ch.  1.     RUNNING  WATER.  (3d  ed.)     3 

munity,  which  resulted  from  the  fact  that  those  things  which 
were  common  to  all  belonged  no  more  to  one  than  to  the  others. 
[Then,  after  saying  that  in  the  course  of  time  men  divided  up 
among  themselves  almost  all  things,  and  most  things  have  passed 
out  of  the  negative  community  and  become  recognized  as  private 
property,  proceeds:]  Some  things,  however,  did  not  enter  into 
this  division,  and  remain,  therefore,  to  this  day  in  the  condition 
of  the  ancient  and  negative  community.  These  things  are  those 
which  the  juris-consults  called  res  communes.  Marcien  refers  to 
several  kinds— the  air,  the  water  which  runs  in  the  rivers,  the  sea 

and  its  shores As  regards  wild  animals  ferae  naturae, 

they  have  remained  in  the  ancient  state  of  the  negative  com- 
munity.6 All  these  things,  which  remained  in  the  ancient  state 
of  the  negative  community,  are  called  things  common  because 
subject  to  becoming  the  property  of  anyone  who  takes  of  them. 
They  are  also  called  res  nullius,  because  no  one  owns  them  while 
in  this  state,  and  cannot  own  them  but  by  getting  them  into  his 
possession.  These  are  the  things  which,  belonging  to  no  one  to  the 
extent  that  they  have  remained  in  the  negative  community,  are 
susceptible  of  being  held  by  right  of  possession."7 

The  law  is  laid  down  to  the  same  effect  by  Puffendorff,  Grotius, 
Vattel,  Pardessus,  and  the  other  great  civil-law  commentators.  A 
later  chapter  has  been  devoted  to  their  presentation,  as  other- 
wise they  would  be  inaccessible  to  most  readers,  and  they  throw 
light  upon  this  fundamental  matter.  They  will  also  be  of  use  to 
practitioners  in  the  Southwest,  where  the  Mexican  law  sometimes 
crops  up.  There  is  no  need,  however,  to  encumber  this  part  of  the 
book  by  cumulative  quotation  here.  The  reader  is  referred  for  them 
to  another  place.8 

This  was  found  to  be  the  civil  law  by  the  common-law  cases 
which  investigated  it.  In  an  early  English  case  the  civil-law 
authorities  are  stated  as  follows:  "By  the  Roman  law,  running 

6  Thus  far,  the  translation  is  that  chacun  a  de  s'en  emparer.     Elles  sont 
given  in  Geer  v.  Connecticut,  161  U.  aussi     appellees     res     nullius,     parce 
S.  525,   16   Sup.  Ct.   Rep.   600,  40  L.  qu'aucun    n'en    a    la    proprietr,    tant 
Ed.  793.     The  remainder  of  the  pas-  qu'elles  demeurent  en  cet  6tat,  et  nc 
sage   is   the   present   writer's   transla-  peut    Pacquerir    qu'en    s'en  emparant. 
tion,    to    which    the    original    is    ap-  Ce   sont   ces   choses   qui,    n'appartien- 
pended.  nent  a  personne,  en  tant  qu'elles  sont 

7  "Toutes  ces  choses,   qui  sont   de-  restc'es  dans  la  communaute  negative, 
murrees    dans   1'ancien    etat    de    com-  qui   sont   susceptibles   de   1'acquisition 
munaute  negative,  sont  appellees  res  qui  se  fait  a  titre  d'occupation." 
communes,  par  rapport  au  droit  que  8  Infra,  sec.  1025    et  seq. 


4     (3d  ed.)  Pt.  I.     FIEST  PRINCIPLES.  §  3 

water,  light  and  air  were  considered  as  some  of  those  things 
which  had  the  name  of  res  communes,  and  which  were  defined 
'things  the  property  of  which  belongs  to  no  person,'  "  etc.9  In 
a  leading  English  case  where  the  civil-law  authorities  are  set 
forth  and  examined,  the  same  conclusion  was  reached  concerning  the 
Roman  law.10  It  is  also  the  civil  law  as  in  force  to-day.  A  modern 
French  work  says :  "The  things  which,  suited  alike  to  the  use  of  all 
men  are  not  susceptible  of  exclusive  possession  cannot,  on  this  ac- 
count, form  the  object  of  a  right  of  property.  These  things, 
which  the  Roman  law  called  res  omnium  communes,  are  the  air, 
the  deep  sea,  and  running  water  as  such;  that  is  to  say,  in  the 
sense  that  one  sees  it  in  its  state  of  continual  motion  and  cease- 
less change."11  Likewise  the  modern  Spanish  law,  regarding 
which  Eschriche  says  that  waters  of  fountains  and  springs  as 
they  go  out  from  thence  "Become  running  water  (aqua  profluens), 
and  pertain  like  common  things  (cosas  comunes),"  etc.12 

The  result  of  these  authorities  is  that  the  corpus  of  naturally  run- 
ning water — the  water  in  the  natural  resource — was  classed  in  the 
Institutes  and  civil-law  writers  with  the  air,  and  those  things  which 
cannot  be  owned  while  in  their  natural  state  and  condition,  or  as 
they  have  been  called,  the  "negative  community."  13 

(3d  ed.) 

§  3.  Development  in  the  Common  Law. — This  civil-law  prin- 
ciple that  running  water  is  in  the  "negative  community"  passed 
into  the  common  law.  It  was  taken  up  by  the  mediaeval  English 
law-writers.  As  regards  a  related  branch  of  the  law  of  waters 

»  Liggins  v.  Inge,  7  Eing.  692.  nantiales  son  proprias  de  los  duenos  de 

10  Mason  v.  Hill,  5  Barn.  &  Adol.  los   terrenes   en    que   nacen   6    de   los 
1,  lit)  Eng.  Reprint,  692,  quoted  in  campos  inferiores   que   ban  adquirido 
the  next  section.  derecho  £  su  aprovechamiento,  mien- 

11  "Les    choses     qui,     destinees     a  tras  permanecen  dentro  de  su  reciato; 
1'usage  commun  de  tous  les  hommes,  pero   asi   que    salen    de  el  se   hacen 
ne  sont  pas  susceptibles  de  possession  aguas     corrientes,   aqua    profiuens,   y 
exclusive,  ne  peuvent,  par  cela  meme,  pertenecen     como    cosas     comunes    al 
former  1'object  du  droit  de  propriete.  primero     que     las    ocupa,    en     cuanto 
•Ces   choses,   que   le   droit   Roman   ap-  tiene    necesidad    de    ellas.     Los    pri- 
pellait   res    omnium     communes,    sont  meros   que   pueden   ocuparlas   son   los 
Pair,   la  haut   mer,   et   I'eau  courante  duenos  de  las  heredades  que  aquellas 
•comme  elle;  c'est-a-dire  en  tant  qu'on  banan      6      atraviesan."       Eschriche, 
1'envisage   dans   son   etat  de  mobilite  "Aguas." 

continue,    et    de    renouvellement    in-  13  Pothier    and    Pardessus,    supra; 

cessant."     (Droit  Civile  Francais,  by  Ohio  Oil  Co.  v.  Indiana,  177  U.  S.  ]90, 

Aubrey  &  Rau,  4th  ed.,  vol.  II,  p.  34.)  20  Sup.  Ct.  Rep.  576,  44  L.  Ed.  729, 

12  "Las    aguas    de    fuentes    y    ma-  20  Morr.  Min.  Rep.  466. 


§  3  Ch.  1.     RUNNING  WATER.  (3d  ed.)     5 

(the  law  of  accretion)  it  has  been  expressly  said:  ^Our  law  may 
be  traced  back  through  Blackstone,14  Hale,15  Britton,16  Fleta,17  and 
Bracton,18  to  the  Institutes  of  Justinian,19  from  which  Bracton 
evidently  took  his  exposition  of  the  subject."20  The  passage  in 
the  Roman  Institutes  above  quoted,  classing  running  water,  as 
a  substance,  with  the  air,  is  transcribed  by  Bracton  as  the  law  of 
England,  saying:21  "By  natural  law  itself,  these  things  are  com- 
mon to  all  —  running  water,  air,  and  the  sea,  and  the  shores  of  the 
sea,  as  the  sea's  accessories."  The  passages  in  Fleta  and  Britton 
are  somewhat  similar.1  In  the  rest  of  this  chapter  we  shall  follow 
this  down  the  history  of  the  law  until  we  find  it  in  the  modern 
authorities. 

The  classification  of  running  water  with  the  air  is  taken  up  by 
another  of  the  older  writers,  frequently  referred  to  in  the  English 
reports.2  He  finds  the  civil-law  rule  in  conflict  with  the  maxim, 
"Cujus  est  solum,  ejus  est  usque  ad  caelum."  Callis  says:  "It 
may  here,  as  I  take  it,  be  moved  for  an  apt  question,  in  whom  the 
property  of  running  waters  was.3  In  my  conceit,  the  civil  law 
makes  prettier  and  neater  distinctions  of  those  than  our  common 
law  doth;  for  there  it  is  said  that  naturali  ratione  quaedam  sunt 
communia,  ut  aer,  aqua  profluens,  mare,  et  littora  maris.  I  concur 
in  opinion  with  them,  that  the  air  is  common  to  all  ;  and  I  hold  my 
former  definitions  touching  the  properties  of  the  sea  and  the  sea- 
shores. But  that  there  should  be  a  property  fixed  in  running  waters, 
I  cannot  be  drawn  to  that  opinion  ;  for  the  civil  law  saith  further, 
quod  aqua  profluens  non  manet  in  certo  loco,  sed  procul  fuit  extra 
ditionem  ejus  quod  flumen  est  ut  ad  mare  tandem  perveniat;  for  in 
my  opinion,  it  should  be  strange  the  law  of  property  should  be  fixed 
upon  such  uncertainties  as  to  be  altered  into  meum,  tuum,  suum, 
before  these  words  can  be  spoken,  and  to  be  changed  in  every 

14  Vol.  II,  c.  16,  pp.  261,  262.  maris  accessorial     Bracton,  lib.  2,  f. 

15  De  Jure  Maris,  cc.  1,  6.  .    7>  f*-*^  .^  ^    g 

Bk-   n>   c-   2-  2  Callis  on   Sewers,  p.   78,   original 

17  Bk.  Ill,  c.  2,  sec.  6,  etc.  edition    (1622),   quoted    in    Medway 

18  Bk   II   c   2  Co-  v-  Romney,  9  Com.  B.,  N.  S.,  587, 

'     '  7  Jur->  N-  S->  846>  30  L-  J-  C-  P-  236- 

Sewer"     anciently     signified     small 


19   T,n«t    TT 
ist.  j.i, 


20  Lmdley,     L.     J.,    in     Foster     v.  streams  and  brooks  of  fresh  water. 
Wright,  4  C.  P.  D.  438,  49  L.  J.  C.  3  Citing   Natura    Breva,   fol.    123; 
p-  97-                \  and  PI.  Com.  154;   and  12  H.  7,  fol. 

21  "Naturali   vero    jure     communia  4,   as  recognizing  a  plaintiff  as  hav- 
sunt     omnium    haec  —  aqua   proftuens,  ing  a  property  in  the  water  as  well 
aer,  et  mare,  et  littora  maris,  quasi  as  the  soil. 


6     (3d  ed.)  Pt.  I.     FIRST  PRINCIPLES.  §  3 

twinkling  of  an  eye,  and  to  be  more  uncertain  in  the  proprietor 
than  a  chameleon  of  his  colours. ' '  This  is  the  first  express  recogni- 
tion the  writer  has  discovered,  of  the  conflict  between  this  prin- 
ciple and  the  maxim  ' '  Cujus  est  solum. ' '  4 

In  one  of  the  older  cases  holding  that  ejectment  would  not  lie 
for  a  watercourse  it  is  said  that  livery  could  not  be  made  of  it, 
"for  non  moratur,  but  is  ever  flowing,"  and  comparing  running 
water  to  the  water  in  the  sea.5  This  case  is  cited  in  the  well- 
known  case  of  Shury  v.  Piggot  (1625),  where  (among  many  other 
things  said)  "aqua  profluens"  was  compared  to  the  air,  which 
"aut  invenit,  aut  facit  viam,"  and  also  "The  same  [the  water- 
course] being  a  thing  which  arises  out  of  the  land,  but  no  interest 
at  all  by  this  claimed  in  the  land,  but  quod  currere  solebat  in  this 
way,  and  so  to  have  continuance  of  this."6  Lord  Bacon  spoke 
of  "common  property  which,  like  the  air  and  water,  belongs  to 
everybody. ' ' 7  The  peculiar  nature  of  running  water  was  later 
referred  to  by  Blackstone,  who  gives  several  emphatic  statements 
of  it  as  the  settled  law  of  England.  He  says:  "But,  after  all,  there 
are  some  few  things  which,  notwithstanding  the  general  introduction 
and  continuance  of  property,  must  still  unavoidably  remain  in 

common Such  (among  others)  are  the  elements  of  light,  air 

and  water,"  and  he  also  speaks  of  "the  very  elements  of  fire  or 
light,  of  air  and  of  water.  A  man  can  have  no  absolute  permanent 
property  in  these,  as  he  may  in  the  earth  and  land,  since  these  are 
of  a  vague  and  fugitive  nature";  and  again,  "For  water  is  a  mov- 

4  Lord  Coke  says:   "Land   in   legal  14  Hen.  VIII,  fol.   12;   22  Hen.  VI, 

signification         comprehendeth        any  59;    10    Edward   IV,    14."     Coke    on 

ground,   soil   or   earth  whatsoever,  as  Littleton,  lib.  cap.  1,  sees.  1,  4a.     See 

meadows,     pastures,     woods,     moors,  Blackstone's  Commentaries,  Bk.  II,  p 

waters,    marshes,    furses    and    heath,"  18.     That    the    law,    while    applying 

discussing    the     meaning   of     "land,"  this  maxim  to  percolating  water,  does 

adding  in  the   same   note:    "Also   the  not  follow  it  as  to  running  water,  see 

waters   that   yield    fish    for    the    food  sec.   696,  infra. 

and   sustenance    of    man   are   not    by  5  Challenor   v.    Thomas,   Yelv.   143, 

that  name  demandable  in  a  praecipe;  •  80  Eng.  Eeprint,  96. 

but    the    land    whereupon    the    water  6  Jones,  J.,  in  Shury  v.  Piggot,  3 

floweth  or  standeth  is  demandable,  as,  '  Bulst.    340,    81     Eng.    Reprint,    280. 

for  example,  viginti  acras  terrae  aqua  This    case   is    closely    connected    with 

coopertas.     And     lastly     the     earth  the    maxim,     "Aqua  currit    et    debet 

hath  in  law  a  great  extent  upwards,  currere    ut    currere    solebat."     Infra, 

not  only  of  water,  as  hath  been  said,  sec.  667. 

but  of  aer  and  all  other  things  even  ^  Life   of   Bacon,   English   Men   of 

up  to  heaven ;  for  cujus  est  solum  ejus  Letters  Series,  p.  67. 
est  usque  ad  caelum,  as  is  holden  in 


§  3  Ch.  1.     RUNNING  WATEE.  (3d  ed.)     7 

able,  wandering  thing,  and  must  of  necessity  continue  common  by 
the  law  of  nature. ' ' 8 

The  beginning  of  the  last  century  saw  a  re-examination  into 
the  nature  of  rights  in  running  water.  In  1805,  in  Bealey  v. 
Shaw,9  Lord  Ellenborough  laid  down  the  right,  but  without  dis- 
cussing the  foundation  of  it.10  In  1823,  however,  in  Wright  v. 
Howard,11  it  was  said  of  a  stream,  "there  is  no  property  in  the 
water."  In  1824,  in  Williams  v.  Moreland,12  appear  the  expres- 
sions, "Flowing  water  is  originally  publici  juris/'  and  "running 
water  is  not  in  its  nature  private  property."  In  1831,  in  Liggins 
v.  Inge,13  ' '  Water  flowing  in  a  stream,  it  is  well  settled  by  the  law  of 
England,  is  publici  juris."  In  Mason  v.  Hill,14  decided  in  1833, 
Lord  Denman  elaborately  considered  the  attitude  of  the  law  toward 
running  water,  with  the  intention  ' '  to  discuss,  and,  so  far  as  we  are 
able,  to  settle  the  principle  upon  which  rights  of  this  nature  depend, ' ' 
and  this  case  has  been  generally  accepted  as  accomplishing  this  re- 
sult, settling  the  common  law  of  watercourses  in  its  present  form.10 
Lord  Denman  quotes  at  length  from  the  civil  law,  and  says  con- 
cerning it:  "No  one  had -any  property  in  the  water  itself  except 
in  that  particular  portion  which  he  might  have  abstracted  from 
the  stream  and  of  which  he  had  the  possession,  and  during  the 
time  of  such  possession  only,"  and  says  that  the  expressions  of 
Blackstone  and  the  common-law  cases  just  quoted  calling  running 
water  "publici  juris,"  simply  adopted  into  the  common  law  this 
principle  that  the  water  itself  was  not  the  subject  of  private  owner- 
ship. This  was  followed  very  explicitly  in  the  succeeding  English 
cases.  In  one16  it  was  said:  "Flowing  water,  as  well  as  light 
and  air,  are  in  one  sense  'publici  juris.'  They-  are  a  boon  from 
Providence  to  all  and  differ  in  their  mode  of  enjoyment.  Light 
and  air  are  diffused  in  all  directions,  flowing  water  in  some." 

8  Blackstone's     Commentaries,     Bk.  15  See    to      this      effect    regarding 
II,  pp.  14,  18,  395.  Mason  v.   Hill,   Cocker    v.   Cowper,   5 

9  6    East,   208,    102    Eng.    Beprint,  Tyrw.  103,  1  C.  M.  &  R.  418;  Embrey 
1266.  v.  Owen,  6  Ex.  353;  Stockport  W.  W. 

10  In   12   East,  420,   104   Eng.   Re-  v.  Potter,  3  Hurl.  &  C.  323;  McGlone 
print,  167,  he  says  the  right  rests  on  v.    Smith,    22    L.    R.    Ir.    568;    Lord 
prescription.  Blackburn,    in    Orr    Ewing   v.    Colqu- 

11  1   Sim.  &  St.   190,  57   Eng.  Re-  houn,    2    App.     Gas.    854;     Pugh    v. 
print,  76.  Wheeler,    2    Dev.   &   B.    (N.    C.)    50, 

12  2  Barn.  &  C.  910,  107  Eng.  Re-  Ruffin,  C.  J.;  Angell  on  Watercourses, 
print,  620.  7th  ed.,  sec.   133;   Salmond  on  Torts, 

13  7  Bing.  692,  5  M.  &  P.  712.  p.     254;      Gale     on    Easements,     8th 
U  5  Barn.  &  Adol.  1,  110  Eng.  Re-       (1908)  ed.,  part  3,  c.  I,  p.  258. 

print,  692.  16  Wood  v.  Waud,  3  Ex.  748. 


8     (3d  ed.)  Pt.  I.     FIRST  PRINCIPLES.  §  4 

In  another: 17  "The  water  which  they  claim  a  right  to  take  [from 
a  spring]  is  not  the  produce  of  the  plaintiff's  close;  it  is  not  his 
property;  it  is  not  the  subject  of  property.  Blackstone,  follow- 
ing other  elementary  writers,  classes  water  with  the  elements 
of  light  and  air."  And  in  the  classical  case  of  Embrey  v.  Owen,18 
this  finds  what  may  be  called  its  crystallized  expression  in  the 
English  reports.  In  this  case  Baron  Parke  (who  had  also  taken 
part  in  the  judgment  in  Mason  v.  Hill)  said:  "Flowing  water  is 
publici  juris,  not  in  the  sense  that  it  is  a  bonum  vacans,  to  which 
the  first  occupant  may  acquire  an  exclusive  right,  but  that  it  is 
public  and  common  in  this  sense  only:  that  all  may  reasonably 
use  it  who  have  a  right  of  access  to  it;  that  none  can  Jiave  any 
property  in  the  water  itself,  except  in  the  particular  portion  which 
he  may  choose  to  abstract  from  the  stream  and  take  into  his 
possession,  and  that  during  the  time  of  his  possession  only. " 19  As 
late  as  the  1906  Appeal  Cases  the  Chancellor  said  that  running 
water  is  "publici  juris,"  and  a  claim  to  ownership  of  the  corpus  of 
the  water  of  a  stream  was  said  by  another  of  the  lords  to  be 
"opposed  to  elementary  ideas  about  the  water  of  a  river,"  and 
' '  repugnant  to  the  general  law  of  rivers. ' ' 20 

(3d  ed.) 

§  4.    American  Authorities. — Of  the  authorities  Chief  Justice 

Gibson  said : 21  "  They  establish  that  the  use  of  water,  flowing 
in  its  natural  channel,  like  the  use  of  heat,  light  or  air,  has 
been  held  by  every  civilized  nation  from  the  earliest  times  to 
be  common  by  the  law  of  nature,  and  not  merely  public,  like 
the  use  of  a  riyer  or  a  port,  which  is  subject  to  municipal 
regulation  by  the  law  of  the  place.  They  establish,  also,  that 
the  domestic  uses  of  water  are  its  natural  and  primary  ones. 
Air  is  not  more  indispensable  to  the  support  of  animal  or 
vegetable  life.  Water  is  borne  by  the  air,  in  the  form  of  vapor, 
to  the  remotest  regions  of  the  earth,  for  the  free  use  and  com- 
mon refreshment  of  mankind;  and  to  interdict  the  use  of  the  one 
within  any  given  locality,  would  be  as  monstrous  and  subversive 

17  Race  v.  Ward,  4  El.  &  B.  702.  He  cannot  say  of  any  pint  or  globule 

18  6  Ex.  355.  of  water  that  that  pint  or  globule  is 

19  "It  is  a  right  of  the  same  char-  his."     Pollock,  B.,  in  Kensit  v.  Great 
acter  as  the  right  to  the  pure  flow  of  Eastern  Ry.  (1883),  23  Ch.  D.  566. 
air,  and  is  a  right  of  such  a  nature          20  White  v.  White,  [1906]  App.  Gas. 
that  the  person  who  enjoys  it  cannot  83. 

at  any  time  fix  upon  a  particular  por-  21  Mayor  v.   Commissioners,   7   Pa, 

tion  of  water  to  which  he  is  entitled.      363. 


§  4  Ch.  1.     RUNNING  WATER.  (3d  ed.)     9 

of  the  scheme  of  animal  existence,  as  it  would  be  to  interdict 
the  use  of  the  other.  It  is  only  when  it  has  been  received  on 
the  surface  of  the  earth,  not  while  it  is  falling  from  the  clouds, 
that  it  can  be  made  to  minister  to  the  ordinary  wants  of  life ;  and 
if  it  be  common  at  first,  it  must  continue  to  be  so  while  it  is 
returning,  by  its  natural  channels,  to  the  ocean.  No  one,  there- 
fore, can  have  an  exclusive  right  to  the  aggregate  drops  that  com- 
pose the  mass  thus  flowing,  without  contravening  one  of  the  most 
peremptory  laws  of  nature.  Water  may  be  exclusively  appro- 
priated by  being  separated  from  the  mass  of  the  stream,  and  con- 
fined in  tanks  or  trunks,  but  then  it  would  have  ceased  to  be 
aqua  profluens."  And  adds  that  a  grant  of  water  power  "is  not 
a  grant  of  property  in  the  corpus  of  the  water  as  a  chattel." 
Another  early  case  says:  "It  is  too  late  to  enter  into  the  legal 
character  and  quality  of  water;  the  law  having  been  settled, 
time  out  of  mind,  on  this  subject,  and  remained  uniform  and  un- 
questioned. Water  is  neither  land  nor  tenement,  nor  susceptible 
of  absolute  ownership.  It  is  a  movable,  wandering  thing;  and 
must  of  necessity  continue  common  by  the  law  of  nature.  It  ad- 
mits only  of  a  transient  usufructuary  property ;  and  if  it  escapes  for 
a  moment,  the  right  to  it  is  gone  forever;  the  qualified  owner 

having  no  legal  power  of  reclamation Hence,  as  it  is  said 

in  the  authorities  just  cited,  water  is  a  distinct  thing  from  the 
land.  The  truth  of  this  observation  will  be  recognized  by  every 
person  who  understands  the  natural  properties  of  each.  No  ac- 
tion of  trespass  is  sustainable  for  poisoning  the  water  on  a 
person's  land.22  But  trespass  on  the  case  may  be  maintained 
for  the  injury  done  to  a  usufructuary  right.  The  same  observa- 
tion is  equally  applicable  to  air  and  light;  and  on  account  of 
its  fugitive  nature  water  is  classed  by  all  jurists  with  these  ele- 
ments."23 And  as  a  very  recent  statement,  "The  plaintiff  [as 
riparian  owner]  certainly  has  no  property  in  the  particles  of 
water  flowing  in  the  stream,  any  more  than  it  has  in  the  air  that 
floats  over  its  land.  Its  rights  in  that  respect  are  confined  to  their 
use  and  in  preserving  their  purity  while  passing.  So,  the  fish 
in  the  stream  were  not  the  property  of  the  plaintiff  at  common 
law,  any  more  than  the  birds  that  flew  over  its  land."  24 

22  Citing    3    Blackstone's    Commen-  23  Mitchell  v.  Warner,  5  Conn.  519. 

taries,   217;    Luttrel's   Case,    4   Coke,          24  Willow     River     Club    v.    Wade  j 
84,  76  Eng.  Reprint,  1063.  (1898),  100  Wis.  86,  76  N.  W.  273,  1 

42  L.  R.  A.  305. 


10     (3d  ed.)  Pt.  I.     FIRST  PRINCIPLES.  ,   §  5 

In  recent  California  cases  the  water  is  said  to  belong  at  common 
law  to  the  riparian  proprietors  "by  a  sort  of  common  right."  25  It 
appears  throughout  the  California  reports,  as  hereafter  quoted. 

This  has  passed  into  the  present  Western  law  of  appropriation 
also.  Authorities  are  fully  cited  later  on.26 

There  is  a  very  recent  tendency  to  apply  this  also  to  the  owner- 
ship of  percolating  water  under  the  recent  modification  of  the 
law  with  respect  thereto.  In  the  supreme  court  of  the  United 
States  percolating  water  was  said  in  some  ways  to  be,  like  run- 
ning water,  in  the  negative  community,27  and  recent  California 
cases  say  that  percolating  water  no  longer  belongs  to  the  man  in 
whose  land  it  lies,  as  was  the  old  rule  which  distinguished  it  from 
running  water,  but  that,  until  possession  is  acquired,  the  owner- 
ship is  in  the  public,  or  at  least  that  portion  of  the  public  owning 
the  surface  soil,  and  it  is  common  to  a  large  portion  of  the  com- 
munity.28 

(3d  ed.) 

§  5.  Common  or  Public. — There  is  some  variation  of  this  in 
both  civil  and  common-law  authorities.  One  variation  is  in  chang- 
ing the  expression  from  " things  common"  to  ''things  public." 
Domat 29  names  as  common  things  the  heavens,  stars,  light,  air,  sea ; 
as  public  things,  the  rivers,  streams,  their  banks,  highways.  Fleta , 
(an  early  English  writer)  says:  "Some  things  are  common,  as  the 
air,  sea,  and  shores  of  the  sea ;  others  public,  as  the  right  of  fishing 
and  of  using  rivers  and  harbors."  1  And  Lord  Denman,  in  Mason 
v.  Hill,2  says:  "It  is  worthy  of  remark  that  Fleta,  enumerating  the 
res  communes,  omits  'aqua  profluens.'  "  The  same  may  be  said  of 
Britton3  (another  early  English  writer),  declaring,  "Some  things 

25  Anaheim  W.   Co.  v.   Puller,   150  Cf.  Redfield,  C.  J.,  in  Ford  v.  Whit- 
Cal.   327,   88  Pac.   978,   11   L.   R.  A.,  lock     (1855),.  27     Vt.     265,     saying 
N.  S.,  1062;   Turner  v.  James  Canal  streams   are   of    quasi-public   concern, 
Co.,   155   Cal.   82,    132   Am.   St.   Rep.  because   they   affect   a   large    number 
59,  99  Pac.  520,  22  L.  R.  A.,  N.  S.,  of  people. 

401,  17  Ann.  Cas.  823.  29  Liv.  prelim.,  tit.  3,  s.  1,  p.  16. 

26  Infra,  sees.  18,  275-278.  ,  ,<A1. 

27  Infra,  sees.  34   1100,  1102.  'Aliae    communes    sunt,   ut    aer, 

28  Ex  parte  Elam,  &  Cal.  App.  233,  mar<r'  et  lj«°™  ^aris ;  aliae  pubhcae, 
91  Pac.  811;  Hudson  v.  Daily  PP1909)  SJ^'ftSft    %^ ^Th      ^ 
156  Cal.  617,  105  Pac.  748.     In  Kate  ™na/     Portus<       Fleta'   3   llb''   caP" 
v.  Walkinshaw,   141   Cal.,   at   140,   99  L>  8>  fc 

Am.  St.  Rep.  35,  70  Pac.  663,  74  Pac.  2  5    Barn-    &    Adol.    1,    110    Eng. 

766,    64   L.    R.    A.    236,    Temple,    J.,  Reprint,  692. 

said:  "The  members  of  the  community  3  Bk.    II,    c.    II,    sec.    1;    Nichols* 

have  a  common  interest  in  the  water."  Translation,  p.  175. 


§  6  Ch.  1.     RUNNING  WATER.  (3d  ed.)     11 

are  common,  as  the  sea,  the  air,  and  the  seashore,  and  as  the  right 
of  fishing  in  tidal  waters  and  in  the  sea  and  in  common  waters  and 
rivers ' ' ;  though  in  a  later  section  4  he  includes  wild  animals  among 
the  things  common,  and  he  also  classes  rivers,  like  Fleta,  among  UTe 
things  public  instead  of  common.  So,  many  common-law  cases  al-  • 
ready  quoted  use  the  expression  "publici  juris."  In  conjunc- 
tion with  this  change  of  expression,  a  few  writers  substituted  rain 
water  for  running  water  among  the  things  common.  One  civil-law 
writer  5  commenting  on  the  Institutes  reads  aqua  pluvialis  for  pro- 
fluens,  as  among  res  communes,  and  classes  flumina  with  res  pub- 
licae.  In  another  civil-law  work  "cosas  comunes"  are  defined  as 
those  "qui  sirven  a  los  hombres  y  demas  vivientes  como  el  aire,  el 
agua  llovediza  [rain  water]  el  mar  y  sus  riberas. "  6 

It  is  evident  how  this  came  about.     In  addition  to  the  passage  \ 
above,  classing  running  water  (aqua  profluens)  with  the  common   I 
things,  there  is  a  different  passage  in  the  Institutes  saying,  ' '  But  all    \ 
rivers  and  harbors  are  public, ' ' 7  probably  referring  to  navigation. 
This  has  induced  some  commentators  to  class  running  water  as 
public,  and  then  substitute  rain  water  among  the  list  of  "thing,1 
common. ' '  8    But  the  Institutes,  with  regard  to  air,  running  water, 
and   wild   animals,    make   no   distinction ;   calling  running  water 
common,  even  though  also  calling  rivers  public  as  regards  naviga- 
tion.9 

(3d  ed.) 

§  6.     State  in  Trust  for  the  People. — However,  as  an  outgrowth 

of  this  variation  of  the  idea  of  the  "negative  community" — the 
change  from  "common"  to  "public" — there  is  quite  generally 
to-day  a  tendency  to  substitute  the  positive  expression  that  running 

4  Sec.  3.  tation  in  Bracton's  time.     Azo  ques- 

6  Nicasius,  lib.  2,  tit.  1,  89b.  tions  (and  Bracton  so  notes)  whether 

_  __.  ,  -KT     •  •          m     i     vu     o        there    may   not    be   a    distinction   be- 

6  TVhrprn     Novisimn  lib  ,  . 

iMovisimo,  i.  i,  11  u  £,,  tween  things  common  and  things  pub- 
tit.  1;  Lux  v.  Haggm,  69  Cal.  316,  j.  Qther  &haQ  faat  m&de  IQ  fh/In. 
10  Pac.  674.  See  other  civil-law  gti^teg  Meta  an(J  Britton  to 
authorities  infra,  sec.  1025.  bfi  influenced  by  this  note  oy  Brac. 

7  "Flumina  autem  omma  et  portus  ton>  and  having  put  rivers  into  "public 
publica  sunt."  things"   (as  do  the  Institutes),  feel  a 

8  Professor    Maitland    says    in    his  necessity  then  to  depart  from  the  In- 
commentary  upon  Bracton  in  the  pub-  stitutes  and  omit  running  water  from 
lications  of   the   Selden   Society,   that  the   "common   things." 

Bracton  is  substantially  a  copy  of  the  9  The  complete  classification  in  the 

work  of  an  Italian  commentator  upon  Institutes   of   Justinian   is   quoted   in 

the  Institutes   of  Justinian — a   jurist  full  in  the  chapter  devoted  to  the  civil 

of  Bologna  named  Azo,  of  great  repu-  law.    Infra,  sec.  1025  et  seq. 


12     (3d  €d.)  Pt.  I.    FIRST  PRINCIPLES.  §  6 

water  belongs  to  the  State  in  trust  for  the  people  or  the  public,  in 
analogy  to  a  similar  change  in  the  way  of  stating  the  law  regarding 
wild  game,  and  the  law  of  the  beds  of  navigable  waters.  Thus, 
while  the  shores  of  the  sea  and  beds  of  navigable  waters  are,  in  the 
civil  law,  in  the  negative  community  and  "common"  as  distin- 
guished from  ' '  public, ' ' 10  the  modern  common-law  phrase  is  that 
they  are  owned  by  the  State  in  trust  for  the  people.11  The  same* 
change  is  fairly  well  established  regarding  wild  animals  or  game.12 
In  nearly  all  now  of  the  Western  States  this  change  of  ex- 
pression is,  by  statute,  introduced  regarding  running  water. 13  All 
waters  within  the  State  are  declared  to  be  "the  property  of  the 
public"  (or  to  "belong  to  the  public")  in  Arizona,  California, 
Colorado,  Montana,  Nevada,  New  Mexico,  Oklahoma,  Oregon, 
North  Dakota,  South  Dakota,  Texas,  Utah  and  Wyoming; 
while  in  Idaho,  Nevada,  North  Dakota  and  Wyoming  there 
are  also  declarations  that  waters  are  "the  property  of  the 
State."14  Some  of  the  expressions  in  the  cases  construing  these 
provisions  consider  them  simply  as  an  affirmance  of  the  idea  of  the 
"negative  community,"  as,  for  example,  "The  waters  become  per- 
force publici  juris,"15  or,  "The  waters  of  flowing  streams  are 
publici  juris, — the  gift  of  God  to  all  His  creatures,"16  and  the 
Idaho  court  held  that  a  suit  to  determine  the  rights  of  all  water 
users  on  a  stream  was  not  a  suit  concerning  rights  in  State  prop- 
erty.17 But  some  of  the  decisions  adopt,  as  a  result  of  these  stat- 
utes, the  expression  that  running  water  "belongs  to  the  State  in 
trust  for  the  people. ' ' 18 

10  Infra,  sec.  898.  Cal.  397,  58  Am.  St.  Rep.  183,  48  Pac. 

11  Infra,  see.  898.  374,  39   L.   R.  A.  581.)     Until  actu- 

12  Geer  v.   Connecticut,   161   U.   S.  ally    reduced    to    possession,    the    fish 
519,  16  Sup.  Ct.  Rep.  600,  40  L.  Ed.  belong  to  all  the  people  of  the  State 
793.     Tn  this,  the  leading  case,  Field,  in  common."     Ex    parte    Bailey,   J.55 
J.,  dissented,  however,  because  he  be-  Cal.  472,  132  Am.  St.  Rep.  95,   101 
lieved  wild  animals  belonged  neither  to  Pac.  441. 

the  State,  nor  the  public,  nor  individu-          13  gee  infra>  see.  170. 
als,  but  to  no  one.  being  in  the  nega-  ,   T   ,, 

tive  community,  and  thf  difference  in  .    14  Inf™>  f  «•    J70;,    In   California, 

the   mode   of    expression   he   believed  ft  ,an,,act  of  19^'    (he  Declaration  is 

material,  and  should  be  maintained.  ^a**     £  *f  %t  !      P/Ti  /   °-    » 

Mr.  Justice  Angellotti,  in  a  recent  P60?16  of  the  State  of  California." 
California    case,    says:     "Nothing    ia  15  Willey  v.  Decker,   11  Wyo.  496, 

better  settled  than  the  doctrine  that  10°  Am-  st-  Be?-  939>  73  Pa<5-  21°- 
the  ownership  of  wild  game,  not  re-  16  Mohl  v.  Lamar  Canal  Co.   (C.  C. 

duced  to  actual  possession  by  private  Colo.),  128  Fed.   776. 
parties,  of  which  the  fish  in  our  waters  17  Bear  Lake  Co.  v.  Budge,  9  Idaho, 

constitute  a  part,  is  in  the  people  of  703,  108  Am.  St.  Rep.   179,  75  Pac. 

the  State  in  their  collective  capacity.  614. 
(Citing  People  v.  Truckee  etc.  Co.,  116  18  Infra,  sec.  170  et  seq. 


§  7  Ch.  1.     RUNNING  WATEB.  (3d  ed.)     13 

This  is  the  same  modification  of  the  original  idea  of  the  "nega- 
tive community"  as  that  just  pointed  out — the  variation  from 
' '  common  "  to  ' '  public. ' '  From  saying  that  the  running  waters  of  a 
natural  resource  belong  to  no  one  at  all,  it  is  an  easy  transition 
to  say  that  they  belong  to  the  State  in  trust  for  everyone.  It  had 
originally  come  about  in  the  Desert  States  (the  public  land  States) 
as  opening  a  road  to  their  departure  from  title  in  the  United  States 
to  waters  on  the  public  domain  within  their  limits.19  In  the  pioneer 
California  days  the  theory  was  that  the  corpus  of  running  water  on 
the  public  domain  belongs  to  no  one  (neither  United  States,  State, 
nor  individuals),  being  a  distinctly  negative  idea ;  but  that  the  right 
to  its  flow  and  use,  the  usufruct  in  the  natural  resource,  belongs  to 
the  United  States  on  public  lands.20  But  the  Desert  States  to-day 
deny  to  the  United  States  any  right  of  property  with  regard  there- 
to; and  this  change  from  the  "negative  community"  to  the  positive 
one  of  "State  in  Trust  for  the  People"  facilitates,  or  is  the  result 
of,  this  denial. 

(3d  ed.) 

§  7.  Conclusion. — For  the  present  discussion,  however,  there 
is  no  substantial  difference  in  the  two  forms  of  expression  (that 
is,  whether  common  or  public;  res  communes  or  publici  juris;  the 
property  of  no  one  or  the  property  of  the  State  in  trust  for  the 
people).  So  far  as  they  concern  the  private  rights  of  individuals, 
whether  under  the  law  of  appropriation  or  the  common  law  of 
riparian  rights,  both  are  founded  on  the  ancient  view  taken  by  the 
law  that  running  water  unrestrained  in  its  natural  course  belongs 
to  the  ' '  negative  community ' '  and  is  nobody 's  property ;  its  parti- 
cles or  aggregate  drops,  in  specie  or  as  a  substance,  being  outside 
the  domain  of  what  can  constitute  property ;  just  as  no  one  can  be 
said  to  own  the  air,  the  sea  water,  the  rain  or  the  clouds  or  the 
moon  or  stars,  or  the  pearl  at  the  bottom  of  the  sea,  the  wild 
animals  in  the  forest,  or  the  fish  swimming  in  the  running  stream 
itself.  Like  all  these  things,  running  water  in  its  native  condition 
is  a  substance  wandering  at  large,  obeying  its  own  will  and  ever 
changing  its  form  and  position,  uncontrolled  by  man,  and  with 
them,  moves  in  "the  negative  community,"  whatever  be  the  phrase 
adopted  to  express  that  idea. 

19  Infra,  sec.  167  et  seq. 

20  Kidd  v.  Laird,  15  Gal.  161,  76  Am.  Dee.  472,  4  Morr.  Min.  Eep.  571. 

§§  8-14.     (Blank  numbers.) 


(3d  ed.)  Et.  I.    FIRST  PRINCIPLES.  §  15 


CHAPTER  2. 
THE  USUFRUCT  OF  THE  NATURAL  RESOURCE. 

§  15.     Rights  of  use. 

§  16.     Same. 

§  17.     American  authorities. 

§  18.     Western  authorities. 

§  19.     Conclusion. 

§§  20-29.     (Blank  numbers.) 

(3d  ed.) 

§  15.     Rights  of  Use. — While  the  corpus  of  naturally  running 

water  is  thus  in  the  negative  community  and  not  the  subject  of 
private  ownership  (or  "belongs  to  the  public"),  the  law  recog- 
nizes nevertheless  a  very  substantial  right  in  its  flow  and  use, — 
the  right  to  have  the  liquid  flow  and  to  use  it,  which  the  law  calls 
the  "usufructuary  right,"  or  the  "water  right."  The  law  of 
watercourses  consists  of  the  rules  governing  this  right  of  flow  and 
use  of  the  natural  resource.  We  do  not  stop  long  over  this, 
merely  giving  authorities  to  show  the  distinction  between  the  usu- 
fruct and  the  water  itself. 

There  is  in  the  civil  law  a  large  body  of  law  known  as  the  law 
of  "usufruct."1  One  civil-law  writer  says,  continuing  a  passage 
quoted  above:2  "Though  not  susceptible  of  being  property,  things 
of  this  nature  [the  negative  community]  do  not  the  less  fall  within 
the  province  of  the  law  for  the  regulation  of  their  use,  which  is 
not  absolutely  abandoned  to  the  caprice  of  all."3  Puffendorff, 
speaking  of  the  air,  one  member  of  the  negative  community,  says: 
"So,  though  no  one  will  pretend  to  fix  a  property  in  the  wind,  yet 
we  may  appoint  a  service  or  duty  of  not  intercepting  the  wind  to 
the  prejudice  of  our  mills."4  Another  civil-law  authority,5  speak- 
ing of  a  riparian  proprietor  owning  both  banks  of  a  stream,  says 

1  Inst.    Just.,    lib.    I,    tit.    IV,    V,  Droit   Civile   Francais,   par  Aubry   & 
Pandects,  lib.  VII.     See  Noodt's  "De  Rau,   4th   ed.,   vol.    II,    p.    35,   citing 
Usufructu,"  opp.  torn.  1,  pp.  387-478.  Code  Napoleon,  sec.  714.     This  article 

2  Supra,  sec.  2,  note  11.  714   reads    as    follows:     "There    are 

3  "Quoique  non  susceptibles  de  pro-  things   which   belong   to   no   one,   and 
pri6te,  les  choses  de  cette  nature  n'en  the   use   whereof    is   common    to   all. 
tombent  pas   moins   sous   1'empire   du  The  laws  of  police  regulate  the  man- 
Droit  pour  le  reglement  de  leur  usage,  ner  of  enjoying  such  things." 

qui  n'est  pas,  d'une  maniere  absolue,  4  Puffendorff,  lib.  IV,  c.  V,  sec.  II. 

abandonne   a  la   discretion   de   tous."          5  Hall's  Mexican  Law,  sec.  1392. 


§  15  Ch.  2.     THE  USUFEUCT.  (3d  ed.)     15 

of  the  water:  "It  is  not  his  own  as  to  property,  but  only  as  to  the 
use  which  he  can  make  of  it  in  its  passage."  When  it  is  said  that 
running  water  is  common,  it  is  meant  that  the  stream  is  a  common 
source  of  supply,  which  many  individuals  have  the  right  to  enjoy. 
In  the  old  case  of  Shury  v.  Piggot,  we  recall  the  passages  already 
quoted  where  it  is  said  that  aqua  profluens  is  in  a  class  with  the  air, 
and  a  man's  right  therein  includes  no  interest  in  the  land  but  only 
a  right  to  continuance  of  flow,  Blackstone  says:  "For  water  is  a 
movable,  wandering  thing,  and  must  of  necessity  continue  common 
by  the  law  of  nature,  so  that  I  can  only  have  a  temporary,  transient 
usufructuary  property  therein. ' ' 6  And  again  speaking  of  ' '  quali- 
fied property"  as  opposed  to  an  absolute  right  of  property,  Black- 
stone  says:  "Many  other  things  may  also  be  the  objects  of  qualified 
property.  It  may  subsist  in  the  very  elements  of  fire  or  light, 
of  air,  and  of  water.  A  man  can  have  no  absolute  permanent 
property  in  these,  as  he  may  in  the  earth  and  land,  since  these 
are  of  a  vague  and  fugitive  nature,  and  therefore  can  admit  only 
of  a  precarious  and  qualified  ownership,  which  lasts  so  long  as 
they  are  in -actual  use  and  occupation,  but  no  longer.  If  a  man 
disturbs  another,  and  deprives  him  of  the  lawful  enjoyment  of 
these;  if  one  obstructs  another's  ancient  windows,  corrupts  the 
air  of  his  house  or  gardens,  fouls  his  water,  or  unopens  and  lets 
it  out,  or  if  he  diverts  an  ancient  watercourse  that  used  to  run  to 
the  other's  mill  or  meadow;  the  law  will  animadvert  hereon  as  an 
injury,  and  protect  the  party  injured  in  his  possession.  But  the 
property  in  them  ceases  the  instant  they  are  out  of  possession ;  for, 
when  no  man  is  engaged  in  their  actual  occupation,  they  become 
again  common,  and  every  man  has  equal  right  to  appropriate  them 
to  his  own  use."7  One  well-known  English  case  says:  "The  prop- 
erty in  the  water  itself  was  not  in  the  proprietor  of  the  land 
through  which  it  passes,  but  only  the  use  of  it,  as  it  passes  along, 
for  the  enjoyment  of  his  property,  and  as  incidental  to  it."8  The 
classical  English  expression  is  in  Embrey  v.  Owen,9  saying,  as  else- 
where quoted,10  that  flowing  water  is  publici  juris,  in  which,  itself, 
none  can  have  any  property,  but  may  have  a  right  to  reasonably 
use  it.  "Each  proprietor  of  the  adjacent  land  has  the  right  to  the 

6  2  Blackstone's  Commentaries,  18.  8    Wood  v.  Waud,  3  Ex.  775,  citing 

1  Blackstone's     Commentaries,     Bk.       Stor7  and  Kent- 

TT    P    2*>    T>    3Q5  9  6  Ex-  353- 

H,  c.  25,  p.  395. 


16     (3d  ed.)  Pt.  I.     FIRST  PBINCIPLES.  §  16 

usufruct  of  the  stream  which  flows  through  it,"  the  right  to  the 
benefit  and  advantage  of  the  water  as  it  flows  past.11 

(3d  ed.) 

§  16.     Same. — There  is  an   interesting   early   Scotch   case   in 

which  this  phase  of  the  law  is  analyzed.  It  is  worth  the  attention 
of  those  who  are  interested  in  the  history  of  the  law.12  Lord  Kames 
reports  it  as  follows:  The  lakes  of  Fanyside  are  distant  about  a 
mile  or  two  from  the  River  Aven.  Between  the  lakes  and  the  river 
is  a  mill  taking  water  from  the  lakes.  The  waste  water  from  the 
mill  descends  to  the  river,  and  is  the  only  water  that  reaches  the 
river  unless  when  the  lakes  in  great  speats  overflow  their  banks. 
The  lakes,  the  mill  and  the  whole  surrounding  lands  belong  to  Mr. 
Elphinstone  of  Cumbernauld,  and  he  projected  an  artificial  canal 
to  direct  the  water  of  the  lakes  into  a  different  river.  The  pro- 
prietors of  many  mills  upon  the  River  Aven  took  the  alarm,  and 
commenced  a  declarator  against  Mr.  Elphinstone. 

"At  advising  this  cause,  much  darkness  was  occasioned  by  a 
notion  that  some  of  the  judges  unwarily  adopted,  as  if  a  river  could 
be  appropriated  like  a  field  or  a  horse.  A  river,  which  is  in  per- 
petual motion,  is  not  naturally  susceptible  of  appropriation;  and 
were  it  susceptible,  it  would  be  greatly  against  the  public  interest 
that  it  should  be  suffered  to  be  brought  under  private  property. 
In  general,  by  the  laws  of  all  polished  nations,  appropriation  is 
authorized  with  respect  to  every  subject  that  is  best  enjoyed  sepa- 
rately ;  but  barred  with  respect  to  every  subject  that  is  best  enjoyed 
in  common.  Water  is  scattered  over  the  face  of  the  earth  in  rivers, 
lakes,  etc.,  for  the  use  of  animals  and  vegetables.  Water  drawn 
from  a  river  into  vessels  or  into  ponds  becomes  private  property; 
but  to  admit  of  such  property  with  respect  to  the  river  itself,  con- 
sidered as  a  complex  body,  would  be  inconsistent  with  the  public 
interest  by  putting  it  into  the  power  of  one  man  to  lay  waste  a 

whole  country A  man  who  builds  a  mill  is  entitled  to  make 

an  aqueduct,  provided,  after  using  the  water  for  his  mill,  he  restore 
it  to  the  river  from  whence  it  was  taken.  This  right  he  has  from 

11  Another  English  case  says:  "All  12  Magistrates  of  Linlithgow,  etc., 
that  a  riparian  proprietor  is  entitled  contra  Elphinstone  of  Cumbernauld, 

to  is  flumen  aquae;  but  no  atom  of      „  -&  001   ,0n  ,  ,,.     T        -. .    -,^co 

,    ,  i     •     i     L    v     »       3  Kames.  331  (scotch).  Jan.  14,  1768 

the  water  belongs  exclusively  to  him." 
Earle,  C.  J.,  in  Medway  Co.  v.  Bom-       (italics  ours), 
ney,  9  Com.  B.,  N.  S.,  586. 


§  17  Oh.  2.     THE  USUFRUCT.  (3d  ed.)     17 

the  law  of  nature  without  the  aid  of  prescription.  But  to  carry  the 
water  another  way  without  restoring  it  will  require  forty  years' 
possession  to  defend  him  by  negative  prescription  against  a  chal- 
lenge by  inferior  heritors. 

"Laying,  then,  aside  arguments  from  property  or  servitude,  the 
principles  that  govern  this  case  are  as  follows:  A  river  may  be 
considered  as  the  common  property  of  the  whole  nation,  but  the  law 
declares  against  separate  property  of  the  whole  or  part.  'Et  quidem 
naturali  jure  communia  sunt  haec:  Aer,  aqua  profluens,  et  mare.' 13 
A  river  is  one  subject  composed  of  a  trunk  and  branches.  No  indi- 
vidual can  appropriate  a  river  or  any  branch  of  it;  but  every  indi- 
vidual of  the  nation,  those  especially  who  have  land  adjoining,  are 
entitled  to  the  use  of  the  water  for  their  private  purposes.  Hence  it 
follows,  that  no  man  is  entitled  to  divert  the  course  of  a  river  or  of 
any  of  its  branches ;  which  would  be  depriving  others  of  their  right, 
viz.,  the  use  of  the  water."1* 

(3d  ed.) 

§  17.    American   Authorities. — In   American   cases   the   same 

doctrine  is  laid  down.  Justice  Story  says : 15  ' '  But,  strictly  speak- 
ing, he  has  no  property  in  the  water  itself,  but  a  simple  use  of  it 
while  it  passes  along."  And  Kent: 16  "He  has  no  property  in  the 
water  itself,  but  a  simple  usufruct  while  it  passes  along. "  In  a  New 
York  case: 17  "Another  maxim  ....  is,  that  the  owner  of  the  bed 
of  the  stream  does  not  own  the  water,  but  he  only  has  a  mere  right 
to  its  use;  he  has  a  mere  usufruct."  In  a  Massachusetts  case:  "In 
relation  to  the  stream  itself,  it  is  now  a  well-settled  principle 
that  no  one,  neither  the  riparian  proprietor  nor  the  owner  of 
a  mill,  acquires  or  has  any  property  in  the  water  flowing  in  it, 
except  as  to  that  portion  which  he  actually  withdraws  and  holds 
in  his  own  possession ;  but,  instead  of  'this,  that  he  has  a  simple 
usufruct  of  it  while  it  passes  along."18  In  a  very  recent  New 

13  1  Instit.  de  rerum  divisione.  season;  that  is,  it  was  mainly  an  arti- 

14  The   case   then   proceeds    to    dis-  ficial  flow.    See  infra,  sec.  53,  etc. 
tinguish    the    underground    "feeders"  15  Tyler  v.  Wilkinson,  4  Mason,  397, 
(percolating  tributaries)    as  not  gov-  Fed.   Gas.  No.  14,312. 

erned  by  the  above.     Judgment  in  the  1°  3  Com.  Marg.  439. 

case  was  for  defendant  on  the  ground  17  Pixley  v.  Clark  (1866),  35  N.  Y. 

that  the  flow  from  the  lakes  to  the  520,  91  Am.  Dec.  72. 

river  was  not  a  constant  run  of  water,  is  Pratt      v.      Lamson,      2      Allen 

but  only  occasional  flood  water  in  wet  (Mass.),  287. 
Water  Rights — 2 


18     (3d  ed.)  Pt.  I.    FIEST  PRINCIPLES.  §  18 

York  case19  it  is  said:  "The  water  which  flows  over  the  lands 
of  a  person  is  not  his  property,  and  at  most  he  has  a  mere  usufruc- 
tuary right  therein,  and  must  so  use  it  as  to  not  unnecessarily  and 
unreasonably  impair  its  usefulness  by  other  riparian  owners. 
While  the  Deposit  Electric  Company  may  own  the  land  on  which 
the  dam  is  built,  and  also  a  large  portion  of  the  lands  covered  by 
the  pond,  yet  as  was  said  in  Sweet  v.  Syracuse:  20  'It  is  a  principle 
recognized  in  the  jurisprudence  of  every  civilized  people  from  the 
earliest  times  that  no  absolute  property  can  be  acquired  in  flowing 
water.  Like  light,  air,  or  heat  of  the  sun,  it  has  none  of  the  at- 
tributes commonly  ascribed  to  property,  and  is  not  the  subject  of 
exclusive  dominion  and  control,  ....  While  the  right  to  use  it  as 
it  flows  along  in  a  body  may  become  a  property  right,  yet  the  water 
itself,  the  corpus  of  the  stream,  never  becomes,  or  in  the  nature  of 
things  can  become,  the  subject  of  fixed  appropriation  or  exclusive 
dominion,  in  the  sense  that  property  in  the  water  itself  can  be  ac- 
quired, or  become  the  subject  of  transmission  from  one  to  another. 
Neither  sovereign  nor  subject  can  acquire  anything  more  than  a 

mere  usufructuary  right  therein These  propositions  have 

been  often  stated  by  jurists  and  in  judicial  decisions  in  different 
forms,  but  it  is  believed  that  they  all  concur  in  the  same  general 
result."' 

(3d  ed.) 

§  18.     Western  Authorities. — The  California  court  has  laid  this 

down  in  many  cases.  In  the  earliest  case  upon  the  subject  it 
said:  "It  is  laid  down  by  our  law-writers  that  the  right  of  prop- 
erty in  water  is  usufructuary,  and  consists  not  so  much  of  the  fluid 
itself  as  the  advantage  of  its  use."21  In  another  early  case  the 
court  was  very  emphatic,  saying:  "This  court  has  never  departed 
from  the  doctrine  that  running  water,  so  long  as  it  continues  to 
flow  in  its  natural  course,  is  not,  and  cannot  be  made,  the  subject 
of  private  ownership.  A  right  may  be  acquired  to  its  use  which 
will  be  regarded  and  protected  as  property,  but  it  has  been  dis- 
tinctly declared  in  several  cases  that  this  right  carries  with  it  no 

specific  property  in  the  water  itself In  regard  to  the  water 

of  the  stream,  his  rights  [an  appropriator 's] ,  like  those  of  a 
riparian  owner,  are  strictly  usufructuary,  and  the  rules  of  law  by 

19  In  re  Delaware  Eiver  (1909),  131  21  Eddy  v.  Simpson,  3  Cal.  249,  58 
App.  Div.  403,  115  N.  Y.  Supp.  750.       Am.  Dec.  408. 

20  129   N.   Y.  335,  27  N.  E.   1081, 
89  N.  E.  289. 


S 18  Ch.  2.     THE  USUFEUCT.  (3d  ed.)     19 

which  they  are  governed  are  perfectly  well  settled."22  In  an- 
other: "The  property  is  not  in  the  corpus  of  the  water,  but  only 
in  its  use. ' '  M  Again :  "It  is  not  necessary  in  this  case  to  de- 
fine in  detail  the  precise  extent  of  the  riparian  right  as  existing 
in  this  country;  it  is  enough  to  say  that  under  settled  principles, 
both  of  the  civil  and  common  law,  the  riparian  proprietor  has 
a  usufruct  in  the  stream  as  it  passes  over  his  land."24  In  Lux  v. 
Haggin,25  the  California  court  elaborately  reviewed  the  entire  law 
of  waters,  and  this  is  there  laid  down:  "As  to  the  nature  of  the 
right  of  the  riparian  owner  in  the  water,  by  all  the  modern  as 
well  as  ancient  authorities  the  right  in  the  water  is  usufructuary 
and  consists  not  so  much  in  the  fluid  itself  as  in  its  uses."  In 
another  case  in  that  court  Mr.  Justice  Henshaw  said:  "The  right 
of  a  riparian  proprietor  in  or  to  the  waters  of  a  stream  flowing 
through  or  along  his  land  is  not  a  right  of  ownership  in  or  to 
those  waters,  but  is  a  usufructuary  right — a  right,  among  others, 
to  make  a  reasonable  use  of  a  reasonable  quantity  for  irrigation, 
returning  the  surplus  to  the  natural  channel,  that  it  may  flow  on 
in  its  accustomed  mode  to  the  land  below " ; 26  and  again  in  another 
it  was  said:  "The  rjghts  of  the  riparian  owner  ....  do  not  in- 
clude a  proprietorship  in  the  corpus  of  the  water.  His  right  to 
the  water  is  limited  to  its  use,"  etc.27  Many  other  California 
cases,  hereafter  cited,  lay  this  down,  and  so  do  the  other  Western 
courts,  such  as,  for  example,  the  Nebraska  court,  saying:  "The 
law  does  not  recognize  a  riparian  property  right  in  the  corpus  of 
the  water.  The  riparian  proprietor  does  not  own  the  water.  He 
has  the  right  only  to  enjoy  the  advantage  of  a  reasonable  use  of 
the  stream  as  it  flows  by  his  land,  subject  to  a  like  right  belong- 
ing to  all  other  riparian  proprietors."28  "The  water  of  a  stream 
is  not  the  subject  of  ownership  in  the  ordinary  sense,  but  the  right 
of  property  is  in  the  right  to  use  its  flow,  and  not  in  the  specific 
water."1 

The  right  of  an  appropriator  under  the  Western  law  of  prior 
appropriation  is  governed  by  the  same  principle.    Nothing  is  more 

22  Kidd  v.   Laird,   15   Cal.   162,   76  27  Gould  v.  Eaton,  117  Cal.  542,  49 
Am.  Dec.  472,  4  Morr.  Min.  Hep.  571.       Pac.  577,  38  L.  R.  A.  181. 

23  Nevada  etc.  Co.  v.  Kidd,  37  Cal.          28  Crawford  ete>  Co.  v>  Hathaway, 

,,.  _ .  n  ,    „  67  Neb.  325,  108  Am.  St.  Rep.  647.  93 

24  Pope  v.  Kinnan,  54  Cal.  3.  N   w    ?s,    'fi0  Tj   R    A    ooq  F 

25  69  Cal.  255,  10  Pac.  674.         N.  W.  781,  61)  L.  R.  A.  889. 

26  Hargrave  v.  Cook,  108  Cal.  72,     1  29  Cyc.  334. 
41  Pac.  18,  30  L.  R.  A.  390. 


20     (3d  ed.) 


Pt.I.    FIRST  PRINCIPLES. 


§18 


firmly  settled  in  the  West  than  the  rule  that  an  appropriates*  can 
have  no  ownership  in  the  water,  as  such,  in  the  natural  stream 
above  the  head  of  his  canal  or  ditch,  and  that  his  right  is  solely  one 
to  have  the  stream  water  flow  to  his  ditch  so  that  it  may  be  used.2 

This  principle  of  a  private  right  in  the  use  of  the  natural  re- 
source as  distinguished  from  the  substance  itself  is  taken  from  the 
law  of  "usufruct"  in  the  Institutes,3  and  is  well  recognized  to-day. 
This  usufructuary  right,  or  "water-right,"  is  the  substantial  right 
with  regard  to  flowing  waters;  is  the  right  which  is  almost  in- 


2  Eddy  v.  Simpson,  3  Cal.  249,  58 
Am.  Dec.  408,  15  Morr.  Min.  Rep. 
175;  Hill  v.  Newman,  5  Cal.  445,  63 
Am.  Dec.  140,  4  Morr.  Min.  Rep.  513; 
Conger  v.  Weaver,  6  Cal.  548,  65  Am. 
Dec.  528,  1  Morr.  Min.  Rep.  594; 
Crandall  v.  Woods,  8  Cal.  136,  1  Morr. 
Min.  Rep.  604;  Hill  v.  King,  8  Cal. 
336,  4  Morr.  Min.  Rep.  533;  Kidd 
v.  Laird,  15  Cal.  161,  76  Am.  Dee. 
472,  4  Morr.  Min.  Rep.  571;  Heyne- 
man  v.  Blake,  19  Cal.  579 ;  McDonald 
v.  Askew,  29  Cal.  200,  1  Morr.  Min. 
Rep.  660;  Nevada  etc.  Co.  v.  Kidd, 
37  Cal.  282;  Hanson  v.  McCue,  42  Cal. 
308,  10  Am.  Rep.  299;  Los  Angeles 
v.  Baldwin,  53  Cal.  469;  Pope  v. 
Kinman,  54  Cal.  3;  Parks  Canal  Co. 
v.  Hoyt,  57  Cal.  44;  Lux  v.  Haggin, 
69  Cal.  255,  at  p.  390,  10  Pac.  674; 
Swift  v.  Goodrich,  70  Cal.  103,  11 
Pac.  561;  Green  v.  Carotta,  72  Cal. 
267,  13  Pac.  865;  Riverside  Co.  v. 
Gage,  89  Cal.  410,  26  Pac.  889;  Ball 
v.  Kehl,  95  Cal.  613,  30  Pac.  780; 
Vernon  Irr.  Co.  v.  Los  Angeles,  106 
Cal.  237,  39  Pac.  762;  McGuire  v. 
Brown,  106  Cal.  660,  39  Pac.  1060, 

30  L.  R.  A.  384;   Hargrave  v.  Cook, 
108  Cal.  72,  41  Pac.  18,  30  L.  R.  A. 
390;    Smith   v.   Green,    109    Cal.   229, 
41  Pac.  1022;   People  v.  Truckee  etc. 
Co.,   116   Cal.    397,   58   Am.   St.   Rep. 
183.  48  Pac.  374,  39  L.  R.  A.  581; 
Gould  v.  Eaton,  117  Cal.  542,  49  Pac. 
577,  38  L.  R.  A.  181;  Katz  v.  Walkin- 
shaw,  141  Cal.  116,  99  Am.  St.  Rep. 
35,  70  Pac.  663,  74  Pac.  766,  64  L.  R. 
A.  236  (Shaw,  J.)  ;  Calkins  v.  Sorosis 
Co.,  150  Cal.  431,  88  Pac.  1094;  Duck- 
worth   v.    Watsonville    Co.,    150    Cal. 
520,   89  Pac.   338;    Hesperia   etc.   Co. 
v.  Gardiner,  4  Cal.  App.  357,  88  Pac. 
286;  Saint  v.  Guerrerio,  17  Colo.  448, 

31  Am.  St.  Rep.  320,  30  Pac.   335; 


Boise  etc.  Co.  v.  Stewart,  10  Idaho, 
38,  77  Pac.  25,  321;  Crawford  Co. 
v.  Hathaway,  67  Neb.  325,  108  Am. 
St.  Rep.  647,  93  N.  W.  781,  60  L.  R. 
A.  889;  Salt  Lake  City  v.  Salt  Lake 
etc.  Co.,  24  Utah,  249,  67  Pac.  672, 
61  L.  R.  A.  648;  Salt  Lake  City  v. 
Salt  Lake  etc.  Co.,  25  Utah,  456,  71 
Pac.  1069;  Willey  v.  Decker,  11  Wyo. 
496,  100  Am.  St.  Rep.  939,  73  Pac. 
210;  Pomeroy  on  Riparian  Rights,  sec. 
55;  Kinney  on  Irrigation,  p.  398, 
supra.  See,  also,  infra,  sec.  276. 

"There  is  no  absolute  property  in 
the  waters  of  a  natural  watercourse  or 
natural  lake.'  No  right  can  be  ac- 
quired to  such  waters  except  a  usu- 
fructuary right — the  right  to  use  it, 
or  to  dispose  of  its  use  for  a  bene- 
ficial purpose."  Nev.  Stats.  1907,  p. 
30,  sec.  3. 

Unfortunately,  the  distinction  has 
not  always  been  appreciated.  For  ex- 
ample, in  an  overruled  Colorado  case  it 
was  said:  "The  distinction  attempted 
to  be  drawn  between  the  right  to  use 
water  and  the  title  to  it  is  purely 
mythical  and  imaginary,  and  the 
sooner  it  is  dropped,  and  the  two 
treated  as  identical,  the  better,  and  less 
confusion  will  exist."  Wyatt  v.  Lari- 
mer etc.  Co.  (1892),  1  Colo.  App. 
480,  29  Pac.  913.  The  case  was 
overruled  in  18  Colo.  298,  36  Am. 
St.  Rep.  280,  33  Pac.  144.  See, 
likewise,  Fresno  Irr.  Co.  v.  Park, 
129  Cal.  437,  at  448,  62  Pac.  87, 
speaking  of  the  distinction  "some- 
times made"  between  the  ownership  of 
the  use  of  the  water  and  the  owner- 
ship of  its  corpus.  See,  also,  Stanis- 
laus W.  Co.  v.  Bachman,  152  Cal.  716, 
93  Pac.  858,  15  L.  R.  A.,  N.  S.,  359. 

3  Supra,  sec.  1  et  seq. 


§  19  Ch.  2.     THE  USUFRUCT.  (3d  ed.)     21 

variably  the  subject  matter  over  which  irrigation  or  water  power 
or  similar  contracts  are  made  and  litigation  arises;  and  is  real 
property.  It  is  as  fundamental  under  the  law  of  riparian  rights 
as  under  the  law  of  appropriation.  Under  the  latter  the  right  of 
use  lasts  only  while  in  actual  application.  Under  the  former  the 
right  of  use  is  perpetual  whether  actually  exercised  or  not;  it  is 
perpetually  annexed  as  a  privilege  to  the  riparian  freehold,  to  be 
put  into  actual  exercise  whenever  its  owner  will,  or  not  at  all,  but 
none  the  less  a  mere  right  of  use,  present  or  future,  including  no 
ownership  of  any  drop  of  the  water  while  it  continues  flowing 
naturally. 

(3d  ed.) 

§  19.     Conclusion. — The  law  of  watercourses  under  whatever 

system  (whether  appropriation  or  riparian  rights),  borrowing  from 
the  civil  law,  is  but  a  development  of  the  exercise  of  the  usufruc- 
tuary right,  and  of  the  severance  in  pursuance  of  it,  of  a  portion 
of  the  water  from  the  natural  stream.  The  water  in  the  stream — 
in  the  natural  resource — itself  is  nobody 's  property,  or  ' '  belongs  to 
the  public."  The  right  may  exist,  in  one  having  a  right  of  access 
to  it,  to  take  of  it  or  otherwise  use  it  (called  usufructuary)  and  to 
have  it  flow  to  him  for  his  use.  Any  part  taken  in  the  fulfillment 
of  this  usufructuary  right  is  the  private  property  of  the  taker  while 
in  his  possession,  and  it  is  to  this  last  proposition  that  we  now 
proceed. 

§§  20-29.     (Blank  numbers.) 


22     (3d  ed.)  Pt.I.     FIRST  PKINCIPLES.  5§30,31 


CHAPTER  3. 

WATER  SEVERED  FROM  THE  NATURAL  RESOURCE  AND 
REDUCED  TO  POSSESSION. 

§  30.  Introductory. 

§  31.  Severed  water. 

§  32.  What  acts  reduce  the  water  to  possession. 

§  33.  Analogy  to  wild  animals — a  "mineral  ferae  naturae.1* 

§  34.  Distinguished  from  percolating  water — Ohio  Oil  Co.  v.  Indiana. 

§  35.  Becoming  personal  property. 

§  36.  Same. 

§  37.  Escaped  or  abandoned  water. 

§  38.  Recapture  where  abandonment  not  intended. 

§  38a.  Same. 

§  39.  Same. 

§  40.  Statutory  regulation  of  recapture. 

§§  41-50.     (Blank  numbers.) 

(3d  ed.) 

§  30.  The  development  of  the  law  of  running  water  carries 
the  foregoing  to  its  conclusion  whereby  the  stream  water  which, 
while  in  the  stream,  is  not,  as  a  substance,  the  subject  of  prop- 
erty (or  "belongs  to  the  public"),  finally  passes  into  private  owner- 
ship. This  occurs  when  some  portion  of  it  is  taken  out  of  the 
natural  resource,  severed  from  the  stream,  and  reduced  to  posses- 
sion. The  specific  portion  of  water  taken  ceases  to  be  in  the  nega- 
tive community  or  to  "belong  to  the  public"  so  long  (but  no 
longer)  as  it  is  subjected  to  the  actual  possession,  control  and 
dominion  of  a  private  individual.  A  water-right  is  a  usufruct  in 
the  stream,  the  natural  resource,  consisting  in  the  right  to  have  the 
water  flow  so  that  some  portion  of  it  (which  portion  the  law  limits 
in  various  ways  under  the  system  of  prior  appropriation  or  the 
system  of  riparian  rights)  may  be  reduced  to  possession  and  made 
the  private  property  of  an  individual. 

(3d  ed.) 

§  31.     Severed  Water. — In  the  civil  law  it  is  said:  "Upon  these 

principles,  running  waters  are  held  by  the  Roman  juris-consulti 
to  be  common  to  all  men.  But  it  also  follows  that  this  decision 
does  not  apply  to  waters,  the  appropriation  of  which  (to  the  ex- 
clusion of  the  common  enjoyment)  is  necessary  for  a  certain  pur- 


§  31  Ch.  3.     SEVERED  WATER.  (3d  ed.)     23 

pose,  as  water  included  in  a  pipe  or  other  vessel  for  certain  uses.'*1 
Vilnius  says,  in  commenting  on  the  passage  in  the  Institutes  above 
quoted  regarding  air,  running  water,  and  the  sea:  "First  of  all, 
these  things  are  in  their  nature  suited  to  the  common  -use  of  all  ; 
and  next,  in  case  any  of  these  things  is  such  that  in  its  nature  it 
can  be  taken  into  possession,  it  belongs  to  the  possessor  so  far  as 
he  does  not  injure  the  general  use  by  such  occupation."2  And 
commenting  upon  the  same  passage  in  the  Institutes  a  Scotch  case 
says:  "Water  drawn  from  a,  river  into  vessels  or  into  ponds  be- 
comes private  property."3  No  one  owns  the  air,  but  the  inventor 
who  liquefies  it  owns  so  much  as  is  liquid  in  his  laboratory  ;  it  is  his 
private  property  while  in  his  possession.4 

Pothier  illustrates  it  as  follows:  "One  may  put  the  case,  for 
example,  where  I  go  to  dip  water  from  a  river.  I  acquire  the 
ownership  of  the  water  which  I  have  taken,  and  with  which  I  have 
filled  my  pitcher,  by  title  of  occupancy;  for  this  water,  being  a 
thing  which  belonged  to  no  person,  to  which  no  person  had  any 
exclusive  right  whatever,  I  have  been  able,  on  taking  it  into  my 
possession,  to  acquire  the  ownership  of  it  by  right  of  capture. 
This  is  why,  in  case,  on  returning  from  the  river,  I  have,  for  some 
purpose,  left  my  pitcher  standing  on  the  road,  with  the  intention 
of  returning  later  to  fetch  it  where  I  left  it,  —  if,  in  the  meantime, 
a  passer-by,  having  found  my  pitcher,  proceeds  (to  save  himself 
the  trouble  of  going  -to  the  river)  to  pour  into  his  pitcher  the 
water  that  was  in  mine,  he  has  committed  against  me  an  actual 
theft  of  that  water,  which  water  was  a  thing  of  which  I  was  actu- 
ally the  proprietor,  and  of  which  I  retained  the  possession  through 
the  intention  I  had  of  returning  for  it  at  the  place  where  I  left  it. 

1  Bowyer's    Commentaries    on  Civil      would  be  inconsistent  with  the  public 
Law,  p.  61.  interest,  by  putting  it  in  the  power  of 

,  ,.T,  .  .  one  man  to  lay  waste  a  whole  coun- 

2  "Prinmm   commums     omnium   eat  t      „     Ma  istra\eg    V-    Eiphinstone,  3 
harum  rerum    usus    ad  quam    natura  ^^   g^  £ 
comparatae  aunt;    turn    siquid  earum           4  g         ^^     ^  authority: 
rerum  per  naturam  occupari  poteat,  id  .-T^-^         tions  of    this  runnij 

the  private 


laetur,.     Quoted  in         son  £  Hill, 

5  Barn.  &  Adol.  1,  111)  i^ng.  Kepnnt,  /«Aii  •       •       i 

fiQ'>      rf    California   Civil   Code    sec  (  Allem  einzelne  portionen  von  diesem 

°~-     0±>   C  de»   sec'  Fluszwasser  werden  durch  die  occupa- 

tion     unstrietig     ein     eigenthum     des 

3  Adding,   "but  to    admit  of    such  Schopfenden,  und  dieser  kann   damit 

property  with  respect  to  the  river  it-  machen    was    er   will."     Gliick,    corn- 

self,  considered    as  a  complex  body,  menting  on  Dig.,  lib.  1,  tit.  8.) 


24     (3d  ed.)  Pt.  I.     FIBST  PEINCIPLES.  §  31 

Note  that  the  flow  of  the  stream  must  not  be  confounded  with  the 
running  water  itself,  which  is  designated  aqua  profluens."5 

The  common  law  is  stated  in  identical  terms.  "None  can  have 
any  property  in  the  water  itself,  except  in  the  particular  portion 
which  he  may  choose  to  abstract  from  the  stream,  and  take  into 
his  possession,  and  that  during  the  time  of  his  possession  only."6 
In  a  well-known  case  in  the  House  of  Lords,7  it  is  said  that  no  one 
can  have  any  property  in  the  running  water  of  the  stream  "  which 
can  only  be  appropriated  by  severance,  and  which  may  be  law- 
fully so  appropriated  by  everyone  having  a  right  of  access  to  it" 
(the  riparian  proprietors).  Lord  Campbell  declared8  that  water 
in  a  cistern  is  private  property,  and  in  a  very  recent  case  in  House 
of  Lords  the  Chancellor  said  that  water  in  an  artificial  pond  is 
"water  with  somewhat  of  a  proprietary  right."9  In  a  New  York 
case  it  is  laid  down:  "Water,  when  reduced  to  possession,  is  prop- 
erty, and  it  may  be  bought  and  sold  and  have  a  market  value,  but 
it  must  be  in  actual  possession,  subject  to  control  and  management. 
Running  water  in  natural  streams  is  not  property,  and  never 
was."10  The  California  court  very  clearly  expressed  the  theory 
of  the  law  when,  in  words  similar  to  those  of  the  House  of  Lords 
above  quoted,11  it  said:  "He  does  not  own  the  corpus  of  the  water, 
but  incident  to  his  riparian  is  the  right  to  appropriate  a  certain 
portion  of  it.  It  is  only,  I  think,  by  some  species  of  appropria- 
tion that  one  can  ever  be  said  to  have  title  to  the  corpus  of  the 
water.  The  right  of  the  riparian  owner  is  to  the  continuous  flow 
with  a  usufructuary  right  to  the  water,  provided  he  returns  it  to 
the  stream  above  his  lower  boundary,  and  the  right,  as  I  have  said, 
to  make  a  complete  appropriation  of  some  of  it."12 

The  nature  of  the  right  of  ownership  existing  in  naturally  run- 
ning water  is  that  of  having  it  flow,  of  using  it,  and  of  taking  it 

6  Pothier,  opp.  torn.  8,  p.  149.  water  in  canal — the  water  in  a  canal 
«  Embrey    v.    Owen,    6    Ex.    353;  is  the  sole  property  of  the  canal  own- 
Mason  v.  Hill,  5  Barn.  &  Adol.  1,  110  ers."     5  Am.  &  Eng.   Ency.   of  Law, 
Eng.  Reprint,  692.  113.     The  right  to  take  water  out  of 

7  Lyon  v.  Fishmongers  Co.,  L.  E.  1  another's  pond  is  a  profit  a  prendre. 
App.  Gas.  673.  Angell   on   Watercourses,    7th   ed.,   p. 

8  Race  v.  Ward,  4  El.  &  B.  710.  245;  Hill  v.  Lord,  48  Me.  83,  dictum; 

9  Lord     Halsbury,     in     White     v.  but  not  so  of  the  right  to  take  water 
White,   [1906]   App.  Gas.   84.  from  his  spring.     Race  v.  Ward,  4  El. 

10  City  of  Syracuse  v.  Stacey,  169       &  B.  710.     Water  in  a  pipe  is  a  com- 
N.  Y.  231,  62  N.  E.  354.  modity,   and   if   conveyed   in   a   pipe, 

H  Lyon  v.  Fishmongers  Co.,  supra.  the   pipe   may   belong   to   one   person 

12  Vernon  Irr.  Co.  v.  Los  Angeles,  and  the  water  to  another.     New  Jer- 

106  Cal.  237,  39  Pac.  762.     One  gen-  sey  Co.  v.  Town  of  Harrison,  72  N.  J. 

eral    authority    says:    "Ownership   of  L.  194,  62  AtL  767. 


§  32  Ch.  3.     SEVEEED  WATER.  (3d  ed.)     25 

into  possession  by  diverting  it  into  artificial  structures,  ditches, 
reservoirs,  cisterns,  barrels,  canals,  pipes,  and  the  like,  thereby 
making  private  property  of  a  part  of  it,  during  the  time  it  is  held 
in  possession  and  control.  Being  naturally  a  member  of  the  "nega- 
tive community,"  the  law  recognizes  only  a  right  to  use  or  take 
of  it,  and  to  have  it  flow  to  the  taker  so  that  it  may  be  used  or 
taken  (a  usufructuary  right)  ;  but  when  severed  from  the  natural 
resource,  so  much  of  the  substance  as  is  actually  taken  is  severed 
from  the  negative  community  and,  passing  under  private  posses- 
sion and  control,  becomes  private  property  during  the  period  of 
possession  and  control.  The  corpus  of  the  water  severed  from  the 
stream  in  a  reservoir  or  other  artificial  structure  that  confines  it  in 
control  is  private  property  as  a  commodity;  it  ceases  to  "belong 
to  the  public"  or  to  be  without  ownership,  but  is  "water  with 
somewhat  of  a  proprietary  right." 

(3d  ed.) 

§  32.  What  Acts  Reduce  the  Water  to  Possession. — The  test 
being  whether  the  water  is  reduced  to  actual  possession,  what  spe- 
cific act  may  produce  that  effect  is  a  question  of  fact  in  which 
there  is  latitude  for  difference  under  different  circumstances.  The 
artificial  means  employed  are  usually  dams,  ditches,  reservoirs  and 
other  waterworks  of  magnitude,  on  the  one  hand,  and  household 
utensils,  bottles,  barrels,  hogsheads  and  similar  small  and  movable 
receptacles  on  the  other. 

That  the  water  is  reduced  to  possession  in  the  latter  class  is  ob- 
vious. Thus  Pothier13  uses  a  jug  to  illustrate  the  principle,  and 
another  authority  instances  all  "portable  receptacles."14 

When  the  other  class  is  considered  it  is  not  always  so  obvious^ 
and  depends  much  upon  the  circumstances.  Judge  Field15  thought 
that  water  in  a  reservoir  could  always  be  regarded  as  reduced  to 
possession  and  as  private  property.  Another  authority  said  it  was 
just  as  obviously  so  with  water  in  a  pond  as  with  water  in  vessels.16 
At  the  same  time,  it  has  been  said  that  building  a  dam  across  a 
river  so  as  to  form  a  reservoir  is  not  necessarily  reducing  it  to 

13  Supra.  48,  28  L.  Ed.  173;  dissenting  opinion; 

14  Stanislaus  W.   Co.  v.  Bachman,      People  ex  rel.  Heyneman  v.  Blake,  19 
152  Gal.  719,  93  Pae.  858,  15  L.  E.  A.,       Cal.  579. 

N'i5%rii  Valley  W.  Co.  v.  Schot-  ^Magistrates v. Elphinstone, quoted 
tier,  110  U.  S.  347,  4  Sup.  Ct.  Eep.  <UPra>  see"  31- 


26     (3d  ed.)  Pt.  I.     FIRST  PRINCIPLES.  §  33 

possession,17  and  regarding  the  effect  of  a  dam  in  a  river,  it  is  held 
likewise,18  that  it  does  not  always  alter  the  character  of  the  water 
from  that  of  "publici  juris."  In  one  case  19  it  was  said  that  build- 
ing a  dam  in  a  stream  is  reducing  the  water  to  possession.  The  test 
se-ems  to  be,  as  to  a  dam,  whether  the  flow  of  the  stream  continues 
through  the  water  thus  spread  out,  or  whether  the  flowing  char- 
acter of  the  water  in  its  natural  channel  is  destroyed.  It  would 
seem  a  question  of  fact  in  each  case  whether  the  effect  of  the  dam 
was  simply  to  swell  the  stream,  leaving  it  still  a  stream,  or  was 
to  destroy  the  stream,  and  make  it  a  private  impound.20 

Likewise  the  effect  of  diverting  water  into  a  ditch  might  and 
might  not  be  reducing  it  to  possession,  according  to  the  size  and 
character  of  the  ditch  and  of  the  stream  it  taps.  Small  ditches, 
such  as  mining  ditches  or  lateral  irrigation  ditches,  may  possibly 
be  said  fully  to  hold  control,  whereas  large  canals  like  the  Erie 
Canal,  for  example,  might  be  open  to  question.  However,  it  seems 
the  consensus  of  opinion  that,  as  a  general  rule,  water  in  a  ditch 
is  to  be  regarded  as  reduced  to  possession.21 

These  are  questions  of  fact,  however,  and  in  any  event  sub- 
ordinate to  the  clear  rule  of  law;  that  is,  the  test  is  whether  the 
artificial  structure  reduces  the  water  to  possession. 

(3d  ed.) 

§  33.  Analogy  to  Wild  Animals — A  "Mineral  Ferae  Natu- 
rae."— In  the  negative  community  there  is  a  still  more  familiar 
member,  namely,  animals  ferae  naturae;  with  which,  also,  running 
water  has  been  compared  (even  so  far  as  to  name  it  accordingly  a 
"mineral  ferae  naturae"),  and  which  likewise  become  private  prop- 
erty by  capture. 

In  the  first  place,  wild  animals  are,  by  settled  law,  members  of 
the  negative  community ;  they  are  nobody 's  property  while  wander- 
ing at  large;  and  in  the  next  place,  running  water  is  compared 

17  City  of  Syracuse  v.  Stacey,  169  none  the  less  the  natural  channel  of 
N.  Y.  231,  62  N.  E.  354,  355.  the  South  Fork,  because  by  artificial 

18  White  v.  White,  [1906]  App.  Cas.  means   waters   were   accumulated   and 
83.  spread   out   and   covered  the   original 

19  Conger  v.  Weaver,  6  Cal.  548,  65  channel." 

Am.  Dec.  528,  1  Morr.  Min.  Rep.  594.  21  Infra,  sec.  35. 

20  In  one  case  (County  of  Sierra  v.  "The  water  had  been  segregated  by 
County   of   Nevada    [1908],   155   Cal.  plaintiff  from  the  general  supply,  was 
1,  99  Pac.  371)  it  is  said:   "The  crea-  impounded  in  his  ditch,  and  was  in- 
tion  of  the  reservoir  was  effected  by  tended  to  be  appropriated  to  his  own 
blocking     the     channel     at     a     point  use.     It   was    under    his    control    and 
where    the    stream    would    otherwise  had   become   his   property."     Shaw   v. 
naturally  flow  beyond  it.     But  it  was  Proffitt  (Or.),  109  Pac.  584  (dictum). 


§  33  Ch.  3.     SEVERED  WATEE.  (3d  ed.)     27 

to  animals  ferae  naturae  since  the  days  of  the  Roman  law.  In  the 
Institutes  the  law  of  wild  animals  follows  under  the  same  title  as 
that  above  quoted  concerning  aqua  profluens,  saying:  "Likewise 
wild  animals,  birds  and  fishes,  since  before  capture  belonging  to 
no  one,  after  capture  belong  to  him  who  captures  them."22  Vattel, 
elsewhere  quoted,23  gives  together  as  the  things  of  which  no  one 
claims  the  property,  "the  air,  the  running  water,  the  sea,  the  fish 
and  wild  beasts."  Vinnius,  in  commenting  on  the  Institutes,24  says 
fish  are  among  the  things  common  while  in  the  ocean,  but  cease  to 
be  such  the  moment  they  are  caught ;  and  it  is  also  said :  ' '  The  fish 
in  the  sea,  rivers,  lakes,  etc.,  being  in  their  natural  freedom,  are 
things  belonging  to  no  one;  fishing  is  a  species  of  occupation, 
whereby  the  fisherman  acquires  the  property  in  the  fish  he  catches, 
and  thus  takes  into  his  possession. ' ' 25 

Says  Blackstone:  "A  qualified  property  may  also  subsist  with 
relation  to  animals  ferae  naturae,  ratione  impotentiae,  on  account 
of  their  inability  [mentioning  also  (as  well  as  wild  birds)  young 
birds  not  yet  able  to  fly],  for  these  cannot,  through  weakness,  any 
more  than  the  others  through  restraint,  use  their  natural  liberty 

and  forsake  him The  qualified  property  which  we  have 

hitherto  considered  extends  only  to  animals  ferae  naturae,  when 
either  reclaimed,  impotent,  or  privileged.  Many  other  things  may 
also  be  the  objects  of  qualified  property;  it  may  subsist  in  the  very 
elements  of  fire  and  light,  of  air  and  of  water."  * 

Following  the  particles  of  the  liquid  from  the  stream  into  a 
reservoir  or  other  structure  in  which  they  have  been  confined,  there 

22  Inst.   Just.,   lib.   II,   tit.   1,   see.  23  Infra,  sec.  1025. 

12.     "Ferae  igitur  bestiae  et  volucres  24  2  Inst.,  tit.  1,  sec.  1. 

et  pisces,  id  est  omnia  animalia,  quae  25  Pothier,     Traite     du     Droit     de 

in   terra,   mari,   caelo   nascuntur,  sim-  Proprie'te.     Opera,    torn.    8,    p.     137. 

ulatque  ab  aliquo  capta  fuerint,  iure  The    passage    continues    to    say    that 

gentium   statim  illius   esse   incipiunt;  fishing     in     non-navigable     rivers     is 

quod  enim  ante  nullius  est,  id  natu-  not  really  larceny,  though  treated  as 

rali     ratione     occupantis     conceditur.  such,  but  "Regarding  fish  in  a  reser- 

Nec  interest,  feras  bestias  et  volucres  voir,  these  are  sub  manu,  and  in  the 

utrum  in  suo  fundo  quisque  capiat,  an  possession    of    him   who    is    guarding 

in     alieno ;     plane     qui     in     alienum  them,-  who  may  permit  their  capture 

fundum  ingreditur  venandi  aut  aucu-  as  he  sees  fit;   and   there   can  be  no 

pandi  gratia,  potest   a   domino,   si   is  doubt   whatever   that   one   who   fishes 

providerit,    prohiberi    ne    ingrediatur.  there  without  his  consent    commits  an 

Quiquid  autem  eorum  ceperis,  eo  usque  actual    larceny    against    the    man    to 

tuum  esse  intelligitur,  donee  tua  cus-  whom    these    fish    belong."     See    The 

todia  coercetur ;  cum  vero  evaserit  cus-  Case  of  Swans,  7  Coke  Rep.  15b,  77 

todiam  tuam  et  in  naturalem  liberta-  Eng.  Reprint,  435. 

tern  se  receperit,  tuum  esse  desinit  et  1  II      Blackstone's      Commentaries, 

rursus  occupantis  fit."  395. 


28     (3d  ed.)  Pt.  I.     FIRST  PRINCIPLES.  §  33 

then  has  come  a  change  in  the  "wandering"  of  the  liquid  that  has 
been  so  taken.  It  is  like  the  change  regarding  wild  birds  caught  in 
a  snare,  wild  animals  caged,  fish  caught  in  nets.  Before  capture, 
none  of  these  is  regarded  as  property,  real  or  personal;  being 
wandering,  ownerless  things;  while  wandering  at  large  they  are 
nobody's  property;  but  after  capture,  they  become  the  private 
property  of  the  taker.  While  swimming  in  the  stream  the  fish  in 
the  water  are  no  more  the  subject  of  private  ownership  than  the 
water  they  swim  in,  and  (though  one  may  own  the  usufructuary 
right  of  fishing)  nobody  owns  the  fish  themselves;2  but  the  fisher- 
man owns  them  when  caught  in  a  net.3  So  the  particles  of  water 
that  have  passed  into  private  control  in  a  reservoir,  ditch,  or  other 
waterworks  or  artificial  structure  that  holds  the  water  confined 
have  been  taken  from  their  natural  haunts,  so  to  speak,  and  cap- 
tured. This  comparison  was  made  in  the  following  words  by  Judge 
Field  with  regard  to  the  water  in  the  reservoirs  of  the  Spring 
Valley  Water  Company,  which  supplies  San  Francisco.  After 
saying  that  water  collected  by  individual  agency  in  hogsheads, 
barrels  or  reservoirs  "is  as  much  private  property  as  anything 
else  that  is  reduced  to  possession,  which  otherwise  would  be  lost  to 
the  uses  of  man,"  he  proceeds:  "Indeed,  it  is  a  general  principle 
of  law,  both  natural  and  positive,  that  where  a  subject,  animate 
or  inanimate,  which  otherwise  could  not  be  brought  under  the 
control  or  use  of  man,  is  reduced  to  such  control  or  use  by  in- 
dividual labor,  a  right  of  property  in  it  is  acquired  by  such  labor. 
The  wild  bird  in  the  air  belongs  to  no  one,  but  when  the  fowler 
brings  it  to  the  earth  and  takes  it  into  his  possession,  it  is  his 
property.  He  has  reduced  it  to  his  control  by  his  own  labor,  and 
the  law  of  nature  and  the  law  of  society  recognize  his  exclusive 
right  to  it.  The  pearl  at  the  bottom  of  the  sea  belongs  to  no 
one,  but  the  diver  who  enters  the  water  and  brings  it  to  light  has 
property  in  the  gem.  He  has,  by  his  own  labor,  reduced  it  to  pos- 
session, and.  in  all  communities  and  by  all  law  his  right  to  it  is 
recognized.  So  the  trapper  on  the  plains  and  the  hunter  in  the 
north  have  a  property  in  the  furs  they  have  gathered,  though  the 
animals  from  which  they  were  taken  roamed  at  large  and  belonged 

2  People  v.    Truckee   etc.   Co.,   116  Maier,    103    Cal.    476,    42    Am.    St. 

Cal.    397,    58   Am.    St.   Rep.    183,    48  Rep.  129,  37  Pac.  402. 

T»       QT/  on  T    T>    A    KCI     T?  3  Young  v.   Hichens,  6  Q.  B.  606, 

Pac.  374,  39  L.  R.  A.  581;  Ex  parte  « 


§  33  Ch.  3.     SEVERED  WATER.  (3d  ed.)     29 

to  no  one.  They  have  added  by  their  labor  to  the  uses  of  man  an 
article  promoting  his  comfort  which,  without  that  labor,  would  have 
been  lost  to  him.  They  have  a  right,  therefore,  to  the  furs,  and 
every  court  in  Christendom  would  maintain  it.  So  when  the 
fisherman  drags  by  his  net  fish  from  the  sea,  he  has  a  property 
in  them,  of  which  no  one  is  permitted  to  despoil  him."  .And  he 
applies  this  to  the  water  brought  to  a  city  by  a  water  company.4 
Chancellor  Kent  says:  "The  elements  of  air,  light,  and  water  are 
the  subjects  of  qualified  property  by  occupancy, ' '  and  then,  in  the 
same  paragraph,  proceeds  to  the  law  of  wild  animals,  as  based  on 
the  same  principle.6 

The  leading  authority  in  the  common  law  for  this  comparison  is 
Blackstone,  who  says:  "But,  after  all,  there  are  some -few  things, 
which,  notwithstanding  the  general  introduction  and  continuance 
of  property,  must  still  unavoidably  remain  in  common ;  being  such 
wherein  nothing  but  an  usufructuary  property  is  capable  of  being 
had;  and,  therefore,  they  belong  to  the  first  occupant,  during  the 
time  he  holds  possession  of  them,  and  no  longer.  Such  (among 
others)  are  the  elements  of  light,  air  and  water;  which  a  man  may 
occupy  by  means  of  his  windows,  his  gardens,  his  mills,  and  other 
conveniences;  such  also,  are  the  generality  of  those  animals  which 
are  said  to  be  ferae  naturae,  or  of  a  wild  untamable  disposition, 
which  any  man  may  seize  upon  and  keep  for  his  own  use  or  pleas- 
ure. All  these  things,  so  long  as  they  remain  in  possession,  every 
man  has  a  right  to  enjoy  without  disturbance;  but  if  once  they 
escape  from  his  custody,  or  he  voluntarily  abandons  the  use  of 
them,  they  return  to  the  common  stock,  and  any  man  else  has  an 
equal  right  to  seize  and  enjoy  them  afterward."6 

To  avoid  misunderstanding,  it  must  be  well  noted  that  this  pas- 
sage distinguishes  the  corpus  of  water  from  the  usufructuary  in 
the  stream,  and  that  when  Blackstone  here  says  that  every  man 

4  Spring  Valley   W.   W.   v.   Schot-  In    a    recent     California    case    Mr. 

tier,   110  U.  S.   347,  4  Sup.  Ct.  Rep.  Justice      Angellotti        describes      the 

48,  28  L.  Ed.,  at  p.  183.     Field,  J.,  rights  of  a  water  company  as  "tights 

arguendo  in  a  dissenting  opinion.  necessary  to  secure  the  absolute  own- 

Cf.    the    opinion   of    Sanderson,   J.,  ership   of   the   water   caught  and  im- 

also    dissenting,    in    Nevada    County  pounded."     Contra    Costa    Water    Co. 

etc.   Co.   v.   Kidd,   37    Cal.   326,   say-  v.  Oakland  (Cal.  Sup.),  Jan.  19,  1911, 

ing:   "By  his  diversion  ....  he  con-  113  Pac.  668. 

verts  it  into  a  species  of  merchandise  5  Kent,8   Commentaries    part   5    c. 
which  he  garners  in   his   ditches  and  05    ^    047 
reservoirs — which  he  conveys  to  mar- 
ket, and  measures  out,  and  sells  for  6  Blackstone's     Commentaries,    Bk. 
a  price."  II,  P-  14-     See,  also,  pp.  18,  395. 


30     (3d  ed.)  Pt.  I.     FIEST  PEINCIPLES.  §  34 

has  an  equal  right  to  seize  and  enjoy,  he  is  referring  to  the  par- 
ticles or  drops,  which  no  man  can  trace  or  identify  as  having  been 
formerly  in  his  possession,  and  which  consequently  he  can  lay  no 
claim  to  because  of  such  former  possession.  Instead,  anyone  to 
whom  the  escaped  or  abandoned  particles  come  may  seize  and  use 
them  in  the  same  manner  as  any  other  particles,  and  under  the 
same  considerations  as  govern  his  right  to  such  other.  The  es- 
caped or  abandoned  particles  pass  under  any  usufruct  that  may 
exist  in  the  stream  they  have  mixed  with,  be  the  owners  of  that 
usufruct  who  they  may,  and  without,  for  the  present  purpose, 
specifying  who  the  owners  of  the  usufruct  may  be.  The  state- 
ment applies  only  to  the  corpus  of  the  water  (the  ownership  of  the 
usufruct  has  been  evolved  into  the  law  of  riparian  rights,  or  in  the 
West,  into  the  law  of  appropriation),  and  shows  how  the  corpus 
is  not  the  subject  of  property  while  flowing  naturally,  is  private 
property  during  capture,  and  again  ceases  to  be  property  when 
possession  ceases  (property  in  the  corpus  being  lost  by  escape  of 
the  water  or  its  abandonment,  whereupon  the  particles  again  cease 
to  be  his  property,  and  are  again  nobody's  property,  completing  the 
cycle).7 

(3d  ed.) 

§  34.    Distinguished  from  Percolating  Water — Ohio  Oil  Co.  v. 

Indiana. — This  analogy  of  running  water  to  animals  ferae  naturae 
does  not,  of  course,  exist,  to  the  same  extent,  to  percolating  water, 
because  in  Acton  v.  Blundell  8  a  distinction  was  made  between  the 
two.  A  different  rule  of  ownership  (the  cujus  est  solum  doctrine) 
was  applied  to  percolating  water,  whereby,  even  in  its  natural 
state,  it  is  the  private  property  (real  property)  of  the  landowner 
in  whose  land  it  exists.  This  is  the  great  difference  in  the  atti- 
tude of  the  law  toward  percolating  water  and  the  running  water 
of  streams.  "There  is  only  one  case  in  law  in  which  water  in  its 
natural  state  is  the  subject  of  ownership,  and  that  is  the  case  of 
percolating  water.  A  man  is  regarded  as  owning  the  percolating 
water  while  it  is  in  the  land.  But  other  water  in  its  natural  state 
is  subject  only  to  the  use  of  the  man  through  whose  land  it  flows. 
He  has  a  right  to  its  use  but  is  not  regarded  as  having  the  title. ' ' 9 
There  is  to-day,  however,  a  tendency  to  give  up  the  rule  of  Acton 

7  See  Pardessus,  Trait6   des  Servi-          8  12  Mees.  &  W.  324,  13  L.  J.  Ex. 
tudes,  vol.  I,  p.  174.  289. 

»  Goodwin  on  Real  Property,  p.  2. 


§  34  Ch.  3.     SEVEEED  WATER.  (3d  ed.)     31 

v.  Blundell,  and  to  abandon  the  difference,10  and  thus  to  class 
all  water,  percolating  as  well  as  running,  as  a  "mineral  ferae 
naturae."  Some  authorities  thus  merging  the  different  kinds  of 
water  are  stated  and  reviewed  by  the  supreme  court  of  the  United 
States  in  Ohio  Oil  Co.  v>  Indiana.11  This  is,  of  course,  a  funda- 
mental departure  as  regards  percolating  water,  and  the  court  did 
not  go  the  whole  length  of  putting  it  absolutely,  like  running  water, 
into  the  "negative  community."  The  cujus  est  solum  doctrine 
withheld  the  court  somewhat,  and  it  said  the  analogy  as  to  percolat- 
ing water  is  not  complete.  In  reading  this  opinion,  it  must  be 
borne  in  mind  that  the  court's  hesitation  has  reference  solely  to 
percolating  water,  concerning  which  the  analogy  is  a  very  recent 
departure  or  "new  rule,"  and  involves  the  rejection  of  Acton  v. 
Blundell. 

The  case  dealt  with  natural  gas,  to  which  the  court  also  tenta- 
tively applied  the  principle,  speaking  of  percolating  water  only 
as  an  analogy,  classing  natural  gas,  oil  and  percolating  water 
together  as  "minerals  ferae  naturae";  but  with  some  hesitation 
induced  by  the  cujus  est  solum  doctrine  which  has  hitherto  applied 
to  them,  in  contrast  to  running  water.  Mr.  Justice  White,  deliv- 
ering the  opinion,  said  these  have  no  fixed  situs,  but  on  the  con- 
trary, have  the  power,  as  it  were,  of  self-transmission  and  are 
of  a  peculiar  character.  He  recognizes  that  the  cujus  est  solum 
doctrine  makes  them  the  landowner's  property,  and  yet  says  that 
cannot  absolutely  be,  but  that  property  can  be  based  in  them  only 
when  subject  to  control  in  a  well,  for  example.  When  they  escape 
or  come  under  another's  control,  the  title  of  the  former  is  gone. 
He  quotes  with  approval  a  Pennsylvania  case  12  wrherein  it  is  said 
that  while  these  things  are  minerals,  they  are  minerals  with 
peculiar  attributes.  "Water,  also,  is  a  mineral,  but  the  decisions 
in  ordinary  cases  of  mining  rights,  etc.,  have  never  been  held  as 
unqualified  precedents  in  regard  to  flowing  or  even  percolating 
water.13  Water  and  oil,  and  still  more  strongly  gas,  may  be 
classed  by  themselves,  if  the  analogy  be  not  too  fanciful,  as  minerals 

10  For  the  recent  cases,  see  infra,  (1906),  204  U.  S.  316,   27   Sup.  Ct. 
sec    1066  Rep.  289,  51  L.  Ed.  499. 

11  177  U.  S.  190,  20  Sup.  Ct.  Rep.  "  Wertmordand    C£>4%  ?  Pft 
576,   44   L.   Ed.    729.   20   Morr.   Min.  130  Pa.  235,  18  Atl.  724,  5  L.  R.  A. 
Rep.  466.     See.  also,  Geer  v.  Connect!-  •»*- 

cut,  161  U.  S.  519,  16  Sup.  Ct.  Rep.  ,  .  «  The  distinction  between  the  two 
600  40  L  Ed.  793;  Bacon  v.  Walker  kmds  of  water  is  thus  noted,  but  not 

followed  up. 


32     (3d  ed.)  Pt.  I.     FIKST  PRINCIPLES.  §  34 

ferae  naturae.  In  common  with  animals,  and  unlike  other  min- 
erals, they  have  the  power  and  the  tendency  to  escape  without  the 
volition  of  the  owner.  Their  fugitive  and  wandering  existence 
within  the  limits  of  a  particular  tract  is  uncertain,"  etc.  Other 
cases  are  cited  in  which  the  phrase  ' '  minerals  ferae  naturae ' '  is  used. 
Only  when  reduced  to  actual  possession  do  they  become  the  sub- 
ject of  ownership,  but  then  are,  like  any  other  property,  the  sub- 
ject of  ordinary  commerce.14  Mr.  Justice  White  says  the  land- 
owner has  the  right  on  his  land  to  bore  wells  and  otherwise  seek 
to  acquire  these  things,  but  that  "until  these  substances  are  ac- 
tually reduced  by  him  to  possession,  he  has  no  title  whatever  to 
them  as  owner,"  and  uses  the  expression  that  "things  which  are 
ferae  naturae  belong  to  the  'negative  community.'  '  Proceed- 
ing to  a  conclusion,  however,  regarding  natural  gas,  with  which 
the  case  dealt,  he  cannot  consider  the  analogy  complete.  This  is 
because  of  the  conflict  with  the  cujus  est  solum  doctrine,  which  he 
was  not  ready  to.  reject  entirely,  and,  because,  if  the  analogy  to  the 
negative  community  were  absolute,  he  saw  no  way  to  exclude  the 
public  from  taking  them  as  well  as  the  landowners. 

It  is  not  our  object  here  to  enter  this  discussion  as  to  natural 
gas,  oil,  or  even  percolating  water,  as  we  consider  the  last  separately 
in  another  place.15  We  have  shown  the  settled  view  of  the  law 
toward  running  water  (aqua  profluens).  We  would  also  mention 
with  regard  to  Mr.  Justice  White's  two  grounds  of  hesitation,  that 
as  to  the  first,  the  cujus  est  solum  doctrine  not  only  never  has 
any  bearing  as  to  running  water,  but  is  being  in  contemporary 
cases  rejected  also  as  to  percolating  water;16  while  as  to  the  second, 
the  general  public  is  excluded  (at  common  law)  from  the  use  of 
running  water  for  the  reason  that,  while  its  corpus  is  owned  by  no 
one,  the  taking  thereof  is  confined  to  riparian  proprietors  because 
they,  as  the  owners  of  the  inclosing  lands,  alone  have  access  to  it  (the 
lack  of  access  excluding  all  nonriparian  owners)  ;  following  which  all 
riparian  proprietors,  having  equally  the  right  of  access,  must  exer- 
cise the  resulting  usufruct  reasonably,  with  due  regard  to  the  rights 
of  their  neighbors  on  the  stream.17  Since  the  above  was  published, 

14  Citing  State  ex  rel.  Corwin  v.  L.  B.  A.  443,  17  Morr.  Min.  Hep. 
Indiana  etc.  Co.,  120  Ind.  575,  22  481- 

N.  E.  778,  6  L.  E.  A.  579;   People's  «  *nfra>  sec:  110°  et  *?*     ,    ,  , 

16  See  recent  cases  collected  infra, 
Gas  Co.  v.   Tyner,   131   Ind.   277,   31       sec-  1066< 

Am.   St.  Eep.  433,  31  N.  E.  59,  16  17  Infra,  sec.  692  et  seq. 


§  35  Ch.  3.     SEVERED  WATER.  (3d  ed.)     33 

the  California  court  has  adopted  this  as  the  basis  of  its  new  law  of 
percolating  water  also.18 

From  Ohio  Oil  Co.  v.  Indiana,  the  term  "mineral  ferae  naturae" 
is  passing  into  the  text-books.  For  example,  "Water,  oil,  and 
still  more  strongly  gas,  may  be  classed  by  themselves,  and  have 
been  not  inaptly  termed  minerals  ferae  naturae. ' ' 19 

(3d  ed.) 

§  35.  Becoming  Personal  Property. — The  analogy  to  animals 
ferae  naturae  is  finally  shown  by  the  authorities  establishing  that 
water  reduced  to  possession  is  personal  property.  Just  as  wild 
animals,  by  capture  becoming  private  property,  are  personalty,  so 
likewise  running  water,  severed  from  its  natural  wandering,  and 
confined  under  private  control  in  a  reservoir,  or  other  works  of  man 
that  reduce  it  to  possession,  is  also  personal  property. 

The  individual  particles  of  water  so  impressed  by  diversion  into 
an  artificial  structure  or  waterworks  that  confine  it,  and  become 
private  property,  possess  none  of  the  characteristics  of  immova- 
bility that  go  with  ideas  of  real  estate;  they  are  still  always  mov- 
ing though  privately  possessed,  having,  as  particles,  the  char- 
acteristics of  personal  property.  The  analogy  to  caged  animals, 
snared  birds,  or  fish  in  a  net  shows  well  the  point  of  view ;  and  the 
particles  in  the  reservoir  or  other  artificial  structure  that  reduces 
it  to  possession,  now  private  property,  are  personalty.  This  is  the 
law  as  laid  down  by  Justice  Stephen  Field.20  "Water,  when  col- 
lected in  reservoirs  or  pipes,  and  thus  separated  from  the  original 
source  of  supply,  is  personal  property,  and  is  as  much  the  subject 
of  sale — an  article  of  commerce — as  ordinary  goods  and  merchan- 
dise." This  was  said  of  the  water  in  the  same  Spring  Valley 
reservoirs  as  those  involved  in  the  Schottler  case.  It  was  neces- 
sary to  decide  whether  the  Spring  Valley  Company,  supplying 
San  Francisco  with  water,  was  within  a  statute  authorizing  the 
formation  of  a  corporation  for  trade  or  commerce,  and  it  was  held 

18  Hudson  v.  Daily,  156  Cal.  617,  6  Gal.  App.  233,  91  Pac.  811;  Huber 
105  Pac.  748,  quoted  infra,  sec.  1055.  v.  Merkel,  117  Wis.  355,  98  Am.  St. 

19  21  Am.   &   Eng.   Ency.   of  Law,  Rep.  933,  94  N.  W.  354,  62  L.  R.  A. 
417.     See,  also,  27  Cyc.  534;  Kerr  on  589. 

Real    Property,    sec.    111.     See,    also,          20  People     ex     rel.     Heyneman     v. 

Charon  v.   Clark,   50  Wash.   191,   126  Blake,  19  Cal.  579,  cited  by  him  with 

Am.   St.  Rep.   896,   96  Pac.   1040,   17  approval   in     the     Schottler    opinion, 

it.  R.  A.,  N.  S.,  647 ;  Ex  parte  Elam,  quoted,  sec.  33,  note  4,  supra. 
Water  Rights — 3 


34     (3d  ed.)  Pt.  I.     FIRST  PRINCIPLES.  §  35 

that  it  was.  In  another  California  case  21  it  was  in  effect  held  that 
where  the  corpus  of  water  in  a  pipe  is  involved  as  distinguished 
from'  a  "water-right"  or  usu'fruct  in  a  stream,  a  justice  of  the 
peace  has  jurisdiction,  saying:  "It  has  several  times  been  held 
that  water  diverted  from  a  natural  stream  into  ditches  and  reser- 
voirs is,  when  so  contained  in  said  reservoirs,  the  personal  prop- 
erty and  not  the  real  estate  of  the  owners  thereof."  In  a  Utah 
case  holding  the  water  in  a  ditch  or  pipe  taxable  as  personal  prop- 
erty, it  is  said:  "Water  in  the  pipes  of  a  distributing  system  is 
personal  property.  The  ownership  is  in  the  water  itself. "  22  A  late 
New  Mexico  case,  holding  water  confined  in  a  reservoir  to  be  per- 
sonal property,  says:  "Water  once  reduced  to  possession  and  con- 
trol may  be  the  subject  of  purchase  and  sale,  or  of  larceny ;  and  it 
makes  no  difference  in  that  respect  whether  the  captured  fluid  is 
held  in  a  skin  or  cask  by  an  itinerant  water  vender,  or  in  the  pipes 
of  a  modern  aqueduct  company. ' '  ^  The  water  so  taken  into  an 
artificial  appliance  is  the  subject  of  larceny  at  common  law,  as 
personal  property.24 

There  is  some  latitude  for  discussion  as  to  what  acts  reduce  the 
water  to  possession  as  a  fact.25  But  when  severed  from  the  stream 
and  actually  reduced  to  possession,  the  specific  portion  so  held  at 
any  given  moment  is  personal  property,  and  this  'is  stated  in 
numerous  other  authorities,  some  of  which  are  given  in  the  note.26 

21  Hesperia  etc.  Co.  v.  Gardiner,  4  "It  is   urged  that   an   appropriate  r 
Cal.    App.    357,    88     Pac.     286.     The  of  water  does  not  become  the  owner 
supreme  court  denied  a  rehearing.  of  the  very  body  of  water  as  his  per- 

22  Bear  Lake  Co.  v.  Ogden,  8  Utah,  sonal  property,  until  he  has  acquired 
494,  33  Pac.   135.  the  control  of  it  in  conduits  or  reser- 

23  Mr.  Justice  Abbott  in  Hagerman  voirs  of  his  own.     The  proposition  as 
etc.   Co.   v.   McMurray    (N.   M.),   113  stated    is    undoubtedly    correct,"    etc. 
Pac.  823,  referring  to  the  second  edi-  Beatty,  C.  J.,  in  Riverside  Co.  v.  Gage, 
tion  of  this  book.     See,   also,  Turley  89  Cal.  418,  26  Pac.  889. 

v.  Furman  (N.  M.),  114  Pac.  278.  In   one   case   it   is   said   that   there 

24  Ferens  v.   O'Brien,   11   Q.   B.  D.  is  a  plain  and  substantial   difference 
21.     This    is    enacted     in     California  between  water  in  a  ditch  or  reservoir 
Penal  Code,  section  499.  and   water  in  a   natural  stream,   and 

Wild  animals  are  not  property  in  a  says,     regarding     the     former,    that, 

natural  state,  and  not  the  subject  of  "being  in  defendant's  possession  and 

larceny;   but  when  brought  into  pos-  under    his    control,    had     become    his 

session   by   being   caught   in   a    trap,  personal  property."     Ball  v.  Kehl,  95 

they  are  then  the  subject  of  larceny  Cal.  613,  30  Pac.  780. 
as  chattels.     25  Cyc.  17,  article  "Lar-  "For  the  purpose  of   this   decision, 

ceny,"    by    Professor    J.     H.    Beale.  it   may  be   admitted    that    water  ac- 

See  1  Hale's  Pleas  of  Crown,  511.  quired  by  appropriation    (to   be   solrl 

25  Supra,  sec.  32.  to   miners  and   others)    by   means   of 

26  In  addition  to  the  foregoing,  we  a  ditch  leading  from  a  natural  stream, 
add    the    following     cases    where    the  becomes,  after  it  passes  into  the  ditch, 
principle  was,  enunciated  obiter:  the    personal    property  of  the  appro- 


§  36  Ch.  3.     SEVERED  WATER.  (3d  ed.)     35 

(3d  ed.) 

§  36.  Same. — The  origin  of  this  rule  (deduced  from  the  funda- 
mental civil-law  principle  of  the  "negative  community"  that  the 
corpus  of  the  water  in  a  natural  stream  is  not  property,  real  or 
personal,  in  any  sense  of  the  word),  excludes  the  common-law 
maxim,  "Cujus  est  solum  ejus  est  usque  ad  caelum,"  from  any 
application  to  the  water  of  running  streams.  In  dealing  with  the 
question  of  when  water  becomes  personalty,  a  common  argument  is 
to  overlook  this  starting  point,  and,  failing  to  distinguish  between 
the  water  and  the  water-right,  to  regard  the  stream  water  as  itself 
real  property  under  the  cujus  est  solum  doctrine.  An  argument 
is  then  started  from  a  proposition  that  the  particles  are  realty, 
and  the  transition  is  regarded  as  one  from  the  particles  as  realty 
to  personalty  by  severance  from  the  freehold,  like  fixtures  or 
emblements;  when  in  truth  it  is  the  transition  from  not  property 
(neither  real  nor  personal)  to  private  property,  by  severance  from 
the  natural  stream;  between  particles  wandering  "wild"  and 
particles  "captured"  by  diversion  and  under  private  possession 
and  control.  The  "cujus  est  solum"  argument,  among  other 
things,  would  apply  to  running  streams  the  ideas  upon  which 
the  law  of  percolating  water  rests,  for  the  corpus  of  naturally 
percolating  water  is  property— real  property — as  part  of  the  soil 
under  the  maxim,  "Cujus  est  solum  ejus  est  usque  ad  caelum." 
Not  so,  however,  the  flowing  water  in  a  natural  stream  as  a  natural 
resource,  the  corpus  of  which  is  never  property,  real  or  personal, 
while  in  the  stream.  The  foundation  of  the  law  of  watercourses, 
on  the  one  hand,  and  of  the  law  of  percolating  water  on  the  other, 
is  entirely  different,  owing  to  the  very  fact  that  the  "cujus  est 
solum"  maxim  does  not  apply  to  the  water  of  a  natural  water- 

priator.     Nevertheless,   although   such  from   its    original     channel    and    con- 
appropriator  may  be   entitled  to   the  veyed  elsewhere  in  pipes  for  distribu- 
flow  of  all  the  stream  undiminished,  tion  and  sale,  it  loses  its  original  char- 
the   water   in   the    stream    above   his  acter    and    becomes     personal    prop- 
ditch  is   not    his    personal    property.  erty."     Dunsmuir     v.    Port     Angeles 
....  The  appropriator  certainly  does  Co.,  24  Wash.  114,  63  Pac.  1095. 
not    become    the   owner   of   the   very  "When   water   has   been    separated 
body   of   the   water  until   he   has   ac-  from  the  stream  and  stored  where  it 
quired   control   of    it   in   conduits   or  can   be    controlled    by    the    owner,    it 
reservoirs   created   by   art   or   applied  becomes     personal     property."     Farn- 
to  the  purpose  of  leading  or  storing  ham  on  Waters,  462. 
water    by    artificial     means."     Parks  See,  also,  Helena  W.  W.  v.  Settles, 
Canal  Co.  v.  Hoyt,  57  Cal.  44.  37  Mont.  237,  95  Pac.  838. 
.  "After  it  has  been  diverted 


36     (3d  ed.)  Pt.  I.     FIRST  PEINCIPLES.  §  37 

course.27    The  cujus  est  solum  doctrine  has  no  bearing  upon  the 
point.1 

Aside  from  this  importance  of  the  matter  in  illustrating  the 
theory  of  the  law  of  streams,  however,  it  would  be  unfortunate 
if  much  stress  were  laid  upon  it  in  practice.  It  is  the  continuance 
of  the  natural  supply,  the  flow  and  use  of  the  natural  resource, 
which  alone  is  entitled  to  much  attention.  The  true  force  of  the 
foregoing  lies  in  showing  that  to  decide  cases  upon  the  basis  of 
private  property  rights  in  running  water  as  a  substance  must 
usually  be  improper ;  controversies  must,  as  a  rule,  be  decided  with 
reference  to  the  usufruct  of  the  natural  resource  and  not  the  corpus 
of  the  water  itself.2 

(3d  ed.) 

-§  37.  Escaped  or  Abandoned  Water. — The  water  taken  into 
an  artificial  structure  and  reduced  to  possession  is  private  property 
during  the  period  of  possession.  When  possession  of  the  actual 
water  or  corpus  has  been  relinquished  or  lost,  by  overflow  or  dis- 
charge after  use,  property  in  it  ceases;  the  water  becomes  again 
nobody's  property  and  re-enters  the  negative  community,  or  "be- 
longs to  the  public,"  just  as  it  was  before  being  taken  into  the 
ditch.3  It  has  no  earmarks  to  enable  its  former  possessor  to  follow 

27  Acton  v.   Blundell,    12   Mees.    &  sumer  in  a  portable  receptacle,  reason- 

W.  324,  13  L.  J.  Ex.   289,  in  estab*  ing  upon  the  cujus  est  solum  ground, 

lishing  the  law  of  percolating  water,  The   point  was   not  actually  involved 

said   that   percolating   water    "is   not  in  the  case,  however  j  and  since  then 

to  be  governed  by  the  law  which  ap-  the  case  has  been  doubted  in  Leavitt 

plies   to   rivers   and   flowing   streams,  v.  Lassen   Irr.  Co.,   157   Cal.   82,   106 

but   that   it   rather   falls   within   that  Pac.  404  (see  infra,  sees.  1324,  1325), 

principle  which  gives  to  the  owner  of  and  seems  clearly  no  longer  to  retain 

the  soil  all  that  lies  beneath  his  sur-  the  approval,   so   far  as  concerns  the 

face."  present   matter,   of   the   distinguished 

i  An  example  where  the  "cujus  est  jurist  who  wrote  the  opinion, 

solum"     reasoning     is     inadvertently  2  Kidd   v.   Laird,    15    Cal.    161,    76 

made  use  of,  appears  in  a  recent  case  Am.  Dec.  472,  4  Morr.  Min.  Eep.  571. 

(Stanislaus  W.  Co.  v.   Bachman,   152  Discussing   the   distinction   between 

Cal.*  717,   93   Pac.   858,   15  L.  E.   A.,  the  right  of  use  and  the  water  itself, 

N.    S.,    359).     Expressions    are    used  Mr.    Justice   Ailshie,   in   Idaho,   in   £ 

that  the  water  of  running  streams  is  concurring  opinion,  says:   "Indeed,  it 

on   the   same    footing    as   percolating  can  be  of  no  consequence  to  the  State 

water;  that  running  water  is  not  dif-  as  to  where  the  property  right  in  the 

ferent  from  other  material  substances  waters  is  vested,  so  long  as  the  people 

•composing  a  part  of  the  earth;   that  have  reserved  to  themselves  the  right 

the   particles   of   water   of   a  natural  to  regulate  the  use."     Hard  v.  Boise 

stream    are    real    property;    and    the  etc.  Co.,  9  Idaho,  589,  76  Pac.  331,  at 

opinion  concludes  that  water  does  not  334,  65  L.  E.  A.  407.     See  Part  VII 

become  personalty  on  severance  from  of  this  book  regarding  regulation  of 

the  natural  resource  and  reduction  to  distribution  of  water  to  public  uses, 

possession,   but   only  when   lifted   off  8  Supra,  sec.  2. 
the  ground  and  delivered  to  some  con- 


§  38  Ch.  3.     SEVEEED  WATEB.  (3d  ed.)     37 

it  and  say  it  is  his.  The  specific  water  so  discharged  or  escaped  is 
abandoned ;  not  an  abandonment  of  a  water-right,  but  an  abandon- 
ment of  specific  portions  of  water,  viz.,  the  very  particles  that  are 
discharged  or  have  escaped  from  control. 

There  is  an  abandonment  of  whatever  runs  waste  after'  use. 
When  the  owner  has  made  all  the  use  of  the  water  he  wants,  and 
lets  the  waste  run  off  from  ditches  without  intent  to  recapture,  the 
waste  is  abandoned,  and  the  owner  of  the.  water-right  no  longer 
has  any  claim  upon  it.4  If  it  finds  its  way  by  natural  channels 
into  another  creek,  he  cannot  go  there  and  reclaim  it  as  against 
other  appropriators  there  who  make  use  of  it.5  If  a  miner  digs 
a  ditch  to  drain  away  the  water  from  a  stream  so  that  the  bed  can 
be  mined,  the  water  is  abandoned.8  In  one  case  it  is  said:7 
"The  water  from  the  tunnel  finds  its  way  to  the  stream  and  has 
become  a  part  thereof.  It  inures  to  the  benefit  of  all  taking  water 
therefrom.  In  this  particular  water  the  claimants  have  no  interest 
or  right  which  will  permit  them  to  segregate  a  volume  of  water 
equal  to  that  flowing  from  the  tunnel,  even  if  it  be  an  actual  in- 
crease, and  assert  an  exclusive  right  thereto  as  against  others 
diverting  water  from  the  stream. ' ' 8 

(3d  ed.) 

§  38.    Recapture   Where    Abandonment   not    Intended. — But 

there  is  an  exception  to  this.  If  the  discharge  or  escape  from  the 
ditch  or  tunnel  or  reservoir  or  other  structure  is  made  not  because 
it  is  waste,  but  for  convenience  in  handling  it,  intending  at  the 
time  to  recapture  it  at  some  lower  point,  it  is  not  abandoned,  for 
abandonment  is  always  a  question  of  intention.  In  such  case,  if 
the  water  enters  a  stream,  where  such .  intention  to  retain  owner- 
ship of  the  artificial  increment  exists,  the  water  may  be  reclaimed 
from  the  stream  by  its  producer.  The  usufructuary  right  of  the 
stream  claimants  below  extends  only  to  the  natural  flow  of  the 
stream,  the  specific  waters  of  which  are  nobody's  property;  while 

4  Dougherty  v.  Creary,  30  Cal.  290,       175;  Schulz  v.  Sweeney,  19  Nev.  359, 
89  Am    Dec.  116,  1  Morr.  Min.  Rep.       3  Am.  St.  Rep,  888,  11  Pac.  253. 

35;  Davis  v.  Gale,  32  Cal.  26,  91  Am.  6  McKinney  v.  Smith,  21  Cal.  374, 
Dec.    554,    4    Morr.    Min.    Rep.    604;  1  Morr.  Min.  Rep.  650. 
Colorado  etc.  Co.  v.  Rocky  Ford  etc.  7  Farmers'   etc.   Co.   v.  Rio   Grande 
Co.,  3  Colo.  App.  545,  34  Pac.  580;  etc.  Co.,  37  Colo.  512,  86  Pac.  1042. 
Farmers'  etc.  Co.  v.  Rio   Grande  etc.           8  Citing  La  Jara  Creamery  &  Live- 
Co.,  37  Colo.  512,  86  Pac.  1042.  stock  Assn.  v.  Hanson,  35  Colo.  105, 

5  Eddy  v.  Simpson,  3  Cal.   249,  58  83  Pac.  644. 
Am.   Dec.    408,    15    Morr.    Min.    Rep. 


38     (3d  ed.) 


Pt.I.     FIKST  PEINCIPLES. 


38 


the  property  right  in  the  water  itself  extends,  free  of  such  usufruct 
in  others,  to  whatever  liquid  or  artificial  increment  has,  without 
intent  to  abandon,  been  artificially  added,  produced  or  introduced 
into  the  channel  by  the  labor  of  man.  Such  increment  belongs  to 
the  man  whose  labor  produced  it  or  brought  it  there  when  naturally 
it  would  not  have  existed  there;  having  become  his  property  by 
artificial  development  and  brought  under  his  possession  and  con- 
trol or ' '  captured, ' '  it  may,  in  such  a  case,  be ' '  recaptured, ' '  to  use  an 
expression  of  Judge  Field's.  Water  can  be  discharged  into  a 
stream  as  a  link  in  a  ditch  line  and  taken  out  again,  though  there 
are  prior  appropriators  or  existing  riparian  owners  on  the  same 
stream.  A  stream  may  be  used  to  carry  stored  water.  It  is  not 
abandoned  where  there  is  an  intent  to  recapture  it.9 


9  California. — Hoffman  v.  Stone,  7 
Cal.  46,  4  Morr.  Min.  Rep.  520;  Butte 
etc.  Co.  v.  Vaughn,  11  Cal.  143,  70 
Am.  Dec.  769,  4  Morr.  Min.  Rep.  552; 
Burnett  v.  Whiteside,  15  Cal.  35; 
Weaver  v.  Eureka  L.  Co.,  15  Cal.  274, 
1"  Morr.  Min.  Rep.  642 ;  Davis  v.  Gale, 
32  Cal.  26,  91  Am.  Dec.  554,  4  Morr. 
Min.  Rep.  604;  Richardson  v.  KierJ 
37  Cal.  263;  Wilcox  v.  Hausch,  64 
Cal.  461,  3  Pac.  108;  Creighton  v. 
Kaweah  Co.,  67  Cal.  222,  7  Pac.  658; 
Paige  v.  Rocky  Ford  Co.,  83  Cal.  84, 
21  Pac.  1102,  23  Pac.  875;  Wiggins 
v.  Muscupiabe  Co.,  113  Cal.  182,  54 
Am.  St.  Rep.  337,  45  Pac.  160,  32 
L.  R.  A.  667;  Mayberry  v.  Alhambra 
etc.  Co.,  125  Cal.  444,  54  Pac.  530, 
58  Pac.  68;  Churchill  v.  Rose,  136 
Cal.  576,  69  Pac.  416;  Lower  Tule 
etc.  Co.  v.  Angiola  etc.  Co.,  149  Cal. 
496,  86  Pac.  1081;  Wutchumna  W. 
Co.  v.  Pogue,  151  Cal.  105,  90  Pac. 
362;  Pomona  W.  Co.  v.  San  Antonio 
W.  Co.,  152  Cal.  618,  93  Pac.  881. 
See  Evans  D.  Co.  v.  Lakeside  D.  Co., 
13  Cal.  App.  119,  108  Pac.  1027;  Civ. 
Code,  sec.  1413. 

Colorado. — Platte  etc.  Co.  v.  Buck- 
ers  etc.  Co.,  25  Colo.  77,  53  Pac.  334; 
Oppenlander  v.  Left  Hand  Ditch  Co., 
18  Colo.  142,  31  Pac.  854;  Buckers 
etc.  Co.  v.  Farmers'  etc.  Co.,  31  Colo. 
62,  72  Pae.  49;  Ripley  v.  Park  etc. 
Co,,  40  Colo.  129,  90  Pac.  75.  See 
Hackett  v.  Larimer  etc.  Co.  (Colo.), 
109  Pac.  965.  See  statutes  infra,  sec. 
40. 

Idaho. — Parke  v.  Boulware,  7  Idaho, 
490,  63  Pac.  1045;  Malad  etc.  Co.  v. 


Campbell,  2  Idaho,  411,  18  Pac.  52. 
See  statutes,  infra,  sec.  40. 

Montana. — Beaverhead  etc.  Co.  v. 
Dillon  etc.  Co.,  34  Mont.  135,  85  Pac. 
880;  Smith  v.  Duff,  39  Mont.  382,  133 
Am.  St.  Rep.  587,  102  Pac.  984;  Kelly 
v.  Hynes  (Mont.),  108  Pac.  785.  See 
Civ.  Code,  sec.  1883. 

Nebraska. — See  statutes  cited  infra, 
sec.  40.  In  Cobbey's  Ann.  Stats,  (sec. 
6752,  Laws  1889,  c.  68,  p.  504,  sec.  6, 
and  Laws  1895,  c.  40,  p.  378,  sec.  3) 
it  is,  however,  prohibited  on  streams 
less  than  one  hundred  feet  in  width. 

Nevada. — Schulz  v.  Sweeney,  19 
Nev.  359,  3  Am.  St.  Rep.  888,  11 
Pac.  253. 

New  Mexico. — Laws  1907,  p.  71,  sec. 
60. 

Oklahoma. — Stats.  1905,  p.  274,  sec. 

Oregon. — Simmons  v.  Winters,  21 
Or.  35,  28  Am.  St.  Rep.  727,  27  Pac. 
9;  McCall  v.  Porter,  42  Or.  56,  70 
Pac.  822,  71  Pac.  976;  Hough  v.  Por- 
ter (1908),  51  Or.  318,  95  Pac.  732, 
98  Pac.  1083,  102  Pac.  728.  See 
statutes,  infra,  sec.  40. 

South  Dakota.— Stats.  1905,  p.  201, 
sec.  4;  Stats.  1907,  c.  180,  sec.  4. 

Utah.— Fuller  v.  Sharp,  33  Utah, 
431,  94  Pac.  817;  Herriman  etc.  Co. 
v.  Keel,  25  Utah,  96,  69  Pac.  719; 
Herriman  etc.  Co.  v.  Butterfield  Min. 
etc.  Co.,  19  Utah,  453,  57  Pac.  537,  51 
L.  R.  A.  930.  Enacted  in  Stats.  1911, 
c.  43,-  p.  60,  amending  Comp.  Laws, 
1907,  sec.  1288x25. 

Washington. — Miller  v.  Wheeler 
(1909),  54  Wash.  429,  103  Pac.  641, 


§  38  Ch.  3.     SEVERED  WATER.  (3d  ed.)     39 

In  a  very  early  California  case  Mr.  Justice  Stephen  Field,  deliv- 
ering the  opinion  of  the  court,  said:  "In  the  case  at  bar  the 
channel  of  the  south  fork  of  Jackson  Creek  is  used  as  a  connect- 

• 

ing  link  between  the  Amador  County  canal  and  the  ditch  of  the 
defendants.  The  water  from  the  canal  is  emptied  into  the  fork 
with  no  intention  of  abandoning  its  use,  but  for  the  sole  pur- 
pose of  supplying  the  ditch There  may  be  some  difficulty 

in  cases  like  the  present,  in  determining  with  exactness  the 
quantity  of  water  which  parties  are  entitled  to  divert.  Similar 
difficulty  exists  in  the  case  of  a  mixture  of  wheat  and  corn — 
the  quantity  to  be  taken  by  each  owner  must  be  a  matter  of  evi- 
dence. The  courts  do  not,  however,  refuse  the  consideration  of 
such  subjects,  because  of  the  complicated  and  embarrassing  char- 
acter of  the  questions  to  which  they  give  rise.  If  exact  justice  can- 
not be  obtained,  an  approximation  to  it  must  be  sought,  care  being 
taken  that  no  injury  is  done  to  the  innocent  party.10  The  burden 
of  proof  rests  with  the  party  causing  the  mixture.11  He  must  show 
clearly  to  what  portion  he  is  entitled.  He  can  claim  only  such 
portion  as  is  established  by  decisive  proof.  The  enforcement  of 
his  right  must  leave  the  opposite  party  in  the  use  of  the  full  quan- 
tity to  which  he  was  originally  entitled. ' ' 12  The  party  recaptur- 
ing the  water  must  make  and  deduct  from  the  amount  to  be  re- 
captured due  allowance  for  seepage  and  evaporation,13  and  must 
take  due  care  not  to  abstract  or  impair  any  natural  tributaries,14 
even  if  those  tributaries  consist  only  of  percolating  water.15 

23  L.  R.  A.,  N.  S.,  1065;  Laws  1907,  Pac.   49;    Smith   v.  Duff    (1909),   39 

c.  222,  p.  285.  Mont.  382,  133  Am.  St.  Rep.  587,  102 

Miscellaneous. — See  Elliot  v.  Fitch-  Pac.   984. 

burg  Rj\,   10  Cush.    (Mass.)    193,  57          But  see  Miller  v.  Wheeler   (1909), 

Am.  Dec.  85;  Whittier  v.  Cocheco  Co.,  54  Wash.  429,  103  Pac.  641,  23  L.  R. 

9  N.  H.  454,  32  Am.  Dec.  382 ;  Society  A.,  N.  S.,  1065,  semble  contra,  as  to 

etc.    T.    Morris    Canal    Co.,    Saxt.    (1  burden  of  proof. 
N.  J.  Eq.  830)    157,  21  Am.  Dec.  41.  12  Butte   C.   &   D.    Co.   v.   Vaughn, 

10  Accord,    Burnett    v.    Whitesides,  n  cai    143>  70  Am.  Dec.  769,  4  Morr. 
15  Cal.  35.  Min.  Rep.  552. 

11  Accord  Burnett  v.  Whitesicles   15          u  Herriman  etc    CQ         Butterfield 
Cal.   35;    Wilcox   v.   Hausch     64   Cal.  Min 

iVQ?TV^L  ST?  ^ci  SPT'  51  L-  R'  A-  93°;  Miller  v-  Wheeler 
Keel,  25  Utah,  96,  69  Pac  719;  Her-  (  ^  Wagh '  429  1Q3  pac  641 

riman    etc.    Co.    v.    Butterfield    Mm.  oq  T  R    A     -vr    q     1ftfi',r 

etc.   Co.,   19  Utah,  453,   57   Pac.   537,  „  *„    ''  ^  V^' 

51  L.  R.  A.   930,  the  latter  holding  *  Miller  v.  Wheeler,  supra. 

that  seepage  and  evaporation  must  be  *5  Smith  v.  Duff   (1909),  39  Mont. 

deducted.     See,  also,  Buckers  etc.  Co.  382,  133  Am.  St.  Rep.  587,  102  Pac. 

v.  Farmers'  etc.  Co.,  31  Colo.  62,  72  984. 


40     (3d  ed.) 


Pt.I.     FIRST  PRINCIPLES. 


§38 


The  intention  not  to  abandon  the  water  turns  the  stream  chan- 
nel into  a  mere  means  of  conveyance.16  In  one  case  the  increment 
to  the  stream  consisted  of  waste  water  .seeping  into  it  from  irri- 
gation. The  court  found  (a  matter  possibly  questionable  on  the 
facts  recited)  that  this  water  it  had  always  been  the  intention 
of  the  irrigator,  from  whose  land  it  seeped,  to  recapture  from  the 
stream  and  put  to  his  own  use;  and  held  that  he  consequently 
could  sell  to  another  the  same  right  to  withdraw  from  the  stream 
the  flow  equivalent  to  the  seepage,  which  sale  would  prevail  against 
existing  claimants  on  the  stream.17  Water  may  be  "  developed '  * 
by  a  tunnel  distant  from  and  unconnected  with  the  stream  and 
allowed  to  flow  from  the  tunnel  into  the  stream,  and  where  the 
facts  show  this .  to  be  new  and  foreign  water  which  would  not 
naturally  have  formed  part  of  the  stream,  the  tunnel  owner,  if  he 
so  intends  at  the  time  he  caused  this  increment,  may  reclaim  it 
from  the  stream.18  Water  may  be  drained  from  a  mine  and 
emptied  into  a  stream  with  the  intent  to  recapture  it  at  some 
other  point,  and  a  decree  settling  rights  upon  the  stream  rendered 


16  Simmons  v.  Winters,  21  Or.  35, 
28  Am.  St.  Rep.  727,  27  Pac.  9. 

17  The     court      said      (Miller     v. 
Wheeler    (1909),  54    Wash.  429,   103 
Pac.  641,  23  L.,  R.  A.,  N.  S.,  1065) : 
"Having  decided  that  there  was  some 
flow,  that  this  was  increased  by   the 
energy  and  expenditure  of  appellants, 
and  that  the  increase  was  not  aban- 
doned, the  case  will  be  remanded  to 
the  lower  court  to  find  the  amount  of 
the  original  flow  from  the  springs  on 
Wheeler  Hill,  the  amount  this  flow  has 
been    increased    by    artificial     means, 
and  the  amount  of  depreciation  from 
natural  waste  and  evaporation  of  the 
added  flow  in  passing  from  Wheeler 
Hill  to  the  Miller  headgate;  and  that 
it   then     decree   that    the   amount    so 
found  be   allowed  to   pass  the  head- 
gate  for  use  on  the  lands  of  Wheeler 
and  his  grantees  in  the  valley  below." 
But  an  increment  due  to  more  eco- 
nomical structures  is  not  an  artificial 
increase  such  as  to  take  it  out  of  a 
contract  to  supply  from  the  natural 
flow.     Evans    v.     Prosser     etc.     Co. 
(Wash.),  113  Pac.  271. 

is  Mayberry  v.  Alhambra  etc.  Co., 


125  Cal.  444,  54  Pac.  530,  58  Pac. 
68,  saying:  "The  right  to  the  artifi- 
cial increment  is  quite  distinct  from 
the  title  to  the  natural  flow,  and  the 
owner  thereof  may  reclaim  it  from 
the  channel."  Accord,  Buckers  etc. 
Co.  v.  Farmers'  etc.  Co.,  31  Colo.  62, 
72  Pac.  49.  See  Farmers'  Union  etc. 
Co.  v.  Rio  Grande  etc.  Co.,  37  Colo. 
512,  86  Pac.  1042.  In  one  case  it  is 
said:  "The  court  found,  in  effect,  that 
the  subterranean  water  diverted  and 
carried  down  the  canyon  in  said  pipe- 
line and  by  that  means  mingled  with 
the  natural  surface  flow  and  turned 
into  the  defendants'  ditch  at  the 
Crafton  dam,  did  not  constitute  any 
part  of  the  subterranean  waters  which 
would  naturally  flow  to  and  feed  the 
plaintiff's  source  of  supply,  and  that 
the  interference  with  natural  condi- 
tions did  not  operate  to  diminish 
plaintiff's  supply.  If  this  is  true, 
the  diversion  by  means  of  the  pipe- 
line would  cause  no  damage  to 
plaintiff."  Mentone  Co.  v.  Redlands 
Co.,  155  Cal.  323,  100  Pae.  1082,  22  L. 
R.  A.,  N.  S.,  382,  17  Ann.  Gas.  1222. 


§  38a  Ch.  3.     SEVERED  WATEE.  (3d  ed.)     41 

previously  does  not  prevent  the  recapture  of  the  mine  water  for 
irrigation.19 
.  The  matter  is  frequently  covered  by  statute.20 

(3d  ed.) 

§  38a.  Same. — While  the  new  water  in  the  cases  heretofore 
considered  was  usually  transported  to  the  stream  from  a  distant 
source,  such  as  from  another  stream  in  another  watershed,  yet  the 
same  principle  applies  where  the  increment  is  not  so  transported, 
but  is  caused  to  exist  solely  by  salvage  works  in  the  stream  itself, 
provided  those  works  are  done  with  the  express  intention  of  availing 
oneself  of  the  increased  flow.  Thus,  it  was  applied  in  one  case,21 
where  the  increment  was  introduced  by  merely  clearing  out  a  choked 
channel;  or  by  other  artificial  means;22  or  by  enlarging  flow  of 
springs ; 23  or  by  providing  an  artificial  channel  to  save  seepage 
and  evaporation.24 

A  recent  case  furnished  an  excellent  illustration.  In  Pomona 
W.  Co.  v.  San  Antonio  W.  Co.,25  the  stream  for  two  and  one-half 
miles  was  a  losing  stream,  diminishing  nineteen  per  cent  by 
seepage  and  evaporation  before  reaching  plaintiff.  Defendant 
saved  this  loss  by  providing  a  pipe-line  to  carry  the  stream  over 
those  two  and  one-half  miles,  and  also,  in  the  bed  of  the  creek 
thus  left  dry,  placed  another  pipe-line  in  which  25-50  inches  of 
water  accumulated.1  The  court  says  that  the  defendant  thus  de- 
livers to  plaintiff  below  all  the  water  which  plaintiff  would  get 
and  be  entitled  to  if  the  stream  continued  to  flow  naturally;  and 
the  water  in  the  pipes  in  excess  of  the  natural  flow  is  new,  rescued, 
developed,  or  salvage  water.  The  court  lays  stress  upon  the  fact 
that  the  presence  of  the  new  water  is  due  entirely  to  the  agency 
of  the  defendants,  and  holds  that  the  amount  thereof  must  be  de- 

19  Ripley  v.  Park  etc.  Co.,  40  Colo.  Co.,  34  Mont.  135,  85  Pac.  880;  Kelly 
129,  90  Pac.  75.  v.  Hynes  (Mont.),  108  Pac.  785. 

20  Infra,    sec.    40.     The    California          23  Churchill  v.  Rose,  136  Cal.  576,  69 
Civil  Code  enacts,  section  1413:  "The  Pac.  416. 

water    appropriated    may    be     turned  24  Pomona  W.   Co.  v.   Sau  Antonio 

into   the   channel   of   another    stream  W;   Co.,   152   Cal.   618,   93   Pac.   88,1; 

and  mingled  with  its  water,  and  then  Wiggins  v.  Muscupiabe  Co.,  113  Cal. 

reclaimed;    but    in    reclaiming   it   the  182,   54   Am.   St.    Rep.    337,   45   Pac. 

water    already     appropriated    by    an-  160,  32  L.  R.  A.  667. 

other  must  not  be  diminished."     This  ^  152  Cal.  618,  93  Pac.. 881. 

is  merely  declaratory  of  the  early  deci-  1  No   contention  upon  the    use   of 

sioiis  already  cited.  riparian   proprietors   was   made;    and 

21  Paige    v.    Rocky    Ford    etc.    Co.,  the    parties    all     claimed    to    use     the 
83  Gal.  84,  21  Pac.  1102,  23  Pac.  875.  water  on  nonriparian  lands  or  under 

22  Beaverhead  etc.  Co.  v.  Dillon  etc.  claims   of   appropriation. 


42     (3d  ed.)  Pt.  I.     FIRST  PRINCIPLES.  §  38a 

termined  "with  the  nicest  exactness  possible,"  and  the  right 
thereto  then  belongs  to  defendant  who  rescued  it.  Mr.  Justice 
Henshaw  said :  ' '  This  principle  has  been  enunciated  by  this  court 
as  early  as  Butte  Company  v.  Vaughn,2  and  has  been  reaffirmed, 
however  varying  the  forms  may  have  been,  whenever  it  has  been 
presented.  The  principle  in  brief  is  this:  that  where  one  is  en- 
titled to  the  use  of  a  given  amount  of  water  'at  a  given  point,  he 
may  not  complain  of  any  prior  use  made  of  the  water  which  does 
not  impair  the  quality  or  quantity  to  which  he  is  entitled,  and, 
upon  the  other  hand,  he  may  not  lay  claim  to  any  excess  of  water 
over  the  amount  to  which  he  is  entitled,  however  it  may  be  pro- 
duced. In  the  Vaughn  case,  supra,  the  question  turned  upon  the 
prior  use.  In  Creighton  v.  Kaweah  Irrigating  Company 3  it  is 
said:  'At  best,  the  plaintiffs  would  be  entitled  only  to  have  the 
defendant  enjoined  from  obstructing  the  flow  of  that  which  would 
have  naturally  flowed  unaided  by  artificial  means,  with  which  the 
plaintiff  is  not  connected.'  In  Wiggins  v.  Muscupiabe  L.  &  W. 
Co., 4  this  whole  question  is  elaborately  considered,  and  full  recogni- 
tion is  accorded  of  the  right  to  water  of  one  who  saves  as  well  as  to 
the  one  who  develops  it.  It  there  appeared  that  one  hundred 
inches  of  water  were  naturally  lost  by  absorption  and  evaporation 
in  passing  through  the  natural  channel  from  the  dam  and  ditch 
of  an  upper  riparian  owner  to  the  land  of  a  lower  owner.  It  was 
held  that  a  court  of  equity  in  dividing  the  flow  of  the  stream 
might  allow  the  upper  owner  to  provide  artificial  means  for  carry- 
ing all  the  waters  of  the  stream  in  excess  of  the  one  hundred  inches 
to  the  land  of  the  lower  -owner,  and  permit  the  upper  owner 
to  use  so  much  of  the  one  hundred  inches  as  he  could  save  by  such 
artificial  means,  and,  quoting  from  the  opinion,  it  is  said:  'The 
plaintiff  could,  under  no  circumstances,  be  entitled  to  the  use  of 
more  water  than  would  reach  his  land  by  the  natural  flow  of  the 
stream,  and,  if  he  receives  this  flow  upon  the  land,  it  is  immaterial 
to  him  whether  it  is  received  by  means  of  the  natural  course  of 
the  stream  or  by  artificial  means.  On  the  other  hand,  if  the  de- 
fendant is  enabled  by  artificial  means  to  give  to  the  plaintiff  all 
of  the  water  he  is  entitled  to  receive,  no  reason  can  be  assigned  why 
it  should,  not  be  permitted  to  divert  from  the  stream  where  it 

2  11  Cal.  143,  70  Am.  Dec.  769,  4  4  113    Cal.    195,    54   Am.    St.    Rep. 
Morr.  Min.  Rep.  552.                                      337,  45  Pac.  160,  32  L.  R.  A.  667. 

3  67  Cal.  222,  7  Pac.  658. 


Ch.  3.     SEVERED  WATER.  (3d  ed.)     43 

enters  its  land  and  preserve  and  utilize  the  one  hundred  inches 
which  would  otherwise  be  lost  by  absorption.'  This  same  doctrine 
is  recognized  by  all  the  courts  which  have  been  called  upon  to  con- 
sider it."5 

(3d  ed.) 

§  39.  Same. — The  point  which  distinguishes  these  cases  is  the 
intent  existing  at  the  time  the  artificial  increment  to  the  stream 
is  produced,  not  to  abandon  it,  but,  on  the  contrary,  always  in- 
tending to  reclaim  it,  and  the  carrying  out  of  that  intent  within  a 
reasonable  time.  The  intent  to  recapture  the  water  must  be  pres- 
ent at  the  time  it  is  discharged  from  control,  and  must  be  very 
clearly  shown;6  otherwise  an  injunction  will  lie  to  prevent  its 
recapture.7  The  intent  to  recapture  is  essential,  and  without  it, 
the  water  is  abandoned ;  and,  as  previously  set  forth,  cannot  be  re- 
claimed against  claimants  on  the  stream,  existing  at  the  time  the 
recapture  is  attempted. 

The  rule  permitting  recapture  of  artificial  increments  added  to 
the  stream  without  intent  to  abandon  applies  under  the  law  of 
riparian  rights  as  much  as  under  the  law  of  appropriation.8 

(3d  ed.) 

§  40.  Statutory  Regulation  of  Recapture. — In  this  matter  super- 
vision by  public  officials  seems  specially  desirable  when  the  owners 
along  the  stream  are  numerous.  The  owner  of  a  water-right  in  the 
stream  may  well  say:  "Our  waters  would  be  so  mixed  that,  inde- 
pendently of  the  injury  you  could  cause  me  in  retaking  from  the 
stream  more  water  than  you  had  turned  in,  you  oblige  me  to  keep 
a  constant  surveillance  over  you  while  doing  so,  and  you  compel  me 
to  keep  up  a  perfect  understanding  with  you  in  regard  to  the  main- 
taining, clearing,  and  stoppage,  or  continuance  of  flow,  on  terms 

5  Citing  Platte  Irr.  Co.  v.  Imperial  8  Wiggins    v.    Muscupiabe    Co.,  113 
Co.,  25  Colo.  77,  53  Pac.  335;  Herri-  Cal.    182,    54    Am.    St.    Rep.    337,    45 
man  Irr.  Co.  v.  Butterfield  Min.  Co.,  Pac.   160,  32  L.  R.  A.   667;    Brymbo 
19  Utah,  453,  57  Pac.  541,  51  L.  R.  A.  Co.    v.    Lesters    Co.,    8     Rep.    (Eng.) 
930;    Farnham  on    Waters,  sec.    672.  329;     Elliot     v.     Fitchburg     Ry.,     10 
Note   that   the  Wiggins  case  was   de-  Cush.    (Mass.)    191,  57  Am.  Dec.  85; 
cided   with    regard    to    riparian     pro-  Muskoka  Co.  v.  Queen,  28  Grant  Ch. 
prietors   at   common    law.     See,   also,  (U.  C.)   563;   Fox  etc.  Co.  v.  Kelley, 
infra,  sec.  279.  70  Wis.  287,  35  N.  W.   744;   Society 

6  Schulz  v.  Sweeney,  19  Nev.  359,  3  v.  Morris  Co.,  1  N.  J.  Eq.  157,  21  Am, 
Am.  St.  Rep.  888,  11  Pac.  253.  Dec.  41;  Dyer  v.  Cranston  Co.,  22  R. 

7  Wilcox   v.   Hausch,   64   Cal.   461,  I.  506,  48  Pac.  791. 
3   Pac.   108. 


44     (3d  ed.) 


Pt.  I.     FIRST  PRINCIPLES. 


§40 


upon  which  we  probably  could  not  agree ;  in  a  word,  you  impose  on 
me  a  perpetual  community  of  interest  which  I  have  not  sought,  but 
opposed."  To  meet  this,  the  recent  State  Water  Codes  usually 
allow  the  State  Engineer  to  oversee  the  commingling  and  recap- 
ture.9 In  Washington  the  statute  provides  for  court  commissioners 
for  that  purpose.10  And  such  commissioners  may  be  appointed  by 
courts  in  specific  cases  without  statute.11 


9  Colorado.— Rer.  Stats.  1908,  sees. 
3203,  3222-3225;  Gen.  Stats.  1725; 
Laws  1879,  p.  107,  sec.  39;  Laws 
1907,  p.  176. 

Idaho.— Laws  1909,  p.  150,  c.  197; 
Laws  1911,  c.  149. 

Nebraska. — Cobbey's  Ann.  Stats., 
sees.  6752,  6799;  Stats.  1897,  c.  85,  p. 
359,  see.  1;  Laws  1903,  c.  119,  p.  612. 

New  Mexico. — Stats.  1907,  p.  71, 
sec.  60. 

Oregon. — Stats.  1909,  c.  216,  sec. 
59. 

South  Dakota.— Stats.  1907,  c.  180, 
sec.  4. 

§§  41-50.     (Blank  numbers.). 


And  probably  the  other  States  hav- 
ing water  codes.  See  statutes,  in 
Part  VIII  below. 

10  Stats.  1907,  c.  222,  p.  285. 

In  the  code  of  Lombardy  it  is  pro- 
vided: "Article  16.  Whoever  desires 
to  introduce  water  into  a  public  canal 
with  the  view  of  taking  it  out  again 
at  a  lower  point  shall  submit  his  claim 
to  the  director-general.  It  will  be 
decided  so  as  to  cause  no  injury  to 
the  rights  of  other  parties.  Objec- 
tions to  such  arrangement  will  be  dis- 
posed of  by  the  public  administra- 
tion." 

11  Infra,  sec.  640. 


51  Ch.  4.    NATUBAL  EESOUECES.  (3d  ed.)     45 


CHAPTER  4. 
THE  LAW  CONFINED  TO  NATURAL  RESOURCES. 

S  51.     The  natural  usufruct  alone  of  practical  importance. 

§  52.     Natural  and  artificial  watercourses  distinguished. 

§  53.  The  law  of  natural  watercourses  does  not  apply  to  water  in  an  arti- 
ficial watercourse. 

§  54.     Importance  of  the  right  of  access  to  the  natural  stream. 

|  55.     Artificial  flow  claimants  may  have  priorities  between  themselves. 

§  56.  But  artificial  flow  claimants  have  no  original  rights  against  the 
creator  of  the  flow,  the  owner  of  the  natural  resource. 

§  57.     Same. 

§  58.     Same. 

§  59.     Some  qualifications. 

§  60.     Qualification  by  grant,  condemnation,  or  dedication. 

§  61.     Qualification  by  drainage  from  a  foreign  source  into  a  natural  stream. 

§  62.     Qualification  by  relation  back  to  a  natural  stream. 

§  63.     "First  principles"  deduced. 

§§  64-65.     (Blank  numbers.) 

(3d  ed.) 

§  51.    The  Natural  Usufruct  Alone  of  Practical  Importance. — 

The  value  of  the  foregoing  lies  in  showing  that  the  corpus  of  water 
in  the  stream  itself,  as  a  substance,  is  not  the  subject  of  property 
(is  in  the  "negative  community"  or  "belongs  to  the  public"),  and 
that  one  may  have  only  the  strictly  usufructuary  right  to  the  flow 
and  use  of  the  stream.  Were  the  principles  to  be,  to  any  great 
extent,  so  applied  as  to  regard  cases  as  based  upon  property  rights 
in  running  water  as  a  substance,  it  would  be  a  misapplication,  for 
their  true  force  lies  in  showing  the  opposite — that  controversies 
must,  as  a  rule,  be  decided  with  regard  to  the  flow  and  use  of  the 
natural  water  supply,  and  not  its  corpus;  for  the  usufruct  of  the 
natural  resource  (and  not  the  water  itself)  is  alone  of  practical 
importance. 

This  is  having  much  influence  in  the  West  under  the  law  of  ap- 
propriation, which  forcefully  denies  that  a  water  user  has  any 
ownership  in  the  water  of  the  stream  from  which  he  diverts  (that 
"belongs  to  the  public"),  but  only  a  right  to  continuance  of  supply 
from  the  natural  resource  during  the  beneficial  use.  Under  the 
common  law  of  riparian  rights  the  principle  is  as  true — a  riparian 
owner  also  has  no  ownership  of  the  water  of  the  stream  to  which 


46     (3d  ed.)  Pt.  I.     FIRST  PRINCIPLES.  §  52 

his  land  is  riparian.  He  also  has  only  a  right  of  continuance  of 
supply,  though  this  right  of  a  riparian  owner  differs  from  the  law 
of  appropriation,  in  that  it  is  not  confined  to  periods  of  use,  but 
is  perpetually  reserved  to  his  land, — a  perpetual  right  to  have  the 
supply  from  the  natural  resource  continued  for  future  possible 
use  whether  now  used  or  not. 

(3d  ed.) 

§  52.  Natural  and  Artificial  Watercourses  Distinguished. — 
The  law  of  natural  watercourses  or  of  natural  bodies  of  water  as 
natural  resources  does  not  apply  to  water  in  an  artificial  water- 
course, or  other  occurrence  or  situation  not  of  natural  creation. 
An  artificial  flow,  depending  for  its  continuance  upon  the  act  of 
man,  differs  in  its  essentials  from  a  flow  created  by  nature ;  the 
one  is  voluntary,  and  the  other  is  an  element  of  geological  struc- 
ture, a  natural  part  of  the  earth;1  the  one  requires  duties  to  be 
placed  upon  the  upper  owner  if  he  must  continue  it,  the  other 
requires  no  act  of  man  to  continue  it.  Moreover,  in  the  natural 
resource  whose  flow  is  due  to  nature,  the  water  is  "piiblici  juris" 
(or  "belongs  to  the  public,"  or  is  in  the  "negative  community") 
and  open  to  acquisition  of  original  private  rights  of  continual 
flow  and  use,  or  "water-rights."  But  the  water  in  a  ditch,  reser- 
voir, pipe,  or  other  artificial  impound  or  structure  that  reduces 
it  to  possession  is  not  publici  juris;  it  has  already  somewhat  of 
a  private  right  attached  to  its  corpus  which  withholds  it  from 
natural  servitude  of  flow  and  use  of  others  than  its  actual  pos- 
sessor,— the  natural  order  of  the  water  as  a  thing  wandering  at 
large  has  ceased.2 

Creswell,  J.,  in  Sampson  v.  Hodinott,8  referring  to  the  distinc- 
tion between  an  artificial  drain  and  a  natural  stream,  says  that 
"all  authority,  from  the  Digest  downward,  shows  that  there  is 
distinction."4  That  as  a  general  proposition  rights  are  the  same 
in  natural  and  artificial  watercourses  "cannot  possibly  be  sus- 

i  "A   watercourse   is  a   thing  natu-  or  a   ditch   is  as   much  an   artificial 

ral."     Shury  v.  Piggott,  3  Bulst.  339;  mechanism  as  a  pump;  it  may,  indeed, 

Poph.  169,  81  Eng.  Reprint,  280.  be   much   more   so;    and   the   one   al- 

-  As  said  in  one  case,  Charnock  v.  ters    the    natural    conditions    in    the 

Higuerra,  111  Cal.  473,  481,  52  Am.  same  sense  that  the  other  does." 

St.  Rep.  195,  44  Pac.  171,  32  L.  R.  A.  3  i  Com.  B.,  N.  S.,  590. 

190,  "Every  diversion  of  water  from  1  See,   also,   14    Ency.   of  Laws  of 

a  stream  is  artificial — a  disturbance  England,  604;  5  Am.  &  Eng.  Ency.  of 

of  the  natural  order  of  things.    A  dam  Law,  112. 


§  53  Ch.  4.     NATUBAL  RESOURCES.  (3d  ed.)     47 

tained. "5  As  is  said  by  another  authority:  "The  rights  and  lia- 
bilities of  parties  in  respect  of  artificial  streams  and  watercourses 
are  entirely  distinct  from  the  rights  and  liabilities  of  riparian 
proprietors  [or  appropriators]  in  respect  of  natural  streams  and 
watercourses.  The  water  in  an  artificial  stream  is  the  property 
of  the  party  by  whom  it  is  created  or  caused  to  flow."6 

(3d  ed.) 

§  53.  The  Law  of  Natural  Watercourses  Does  not  Apply  to 
Water  in  an  Artificial  Watercourse. — In  the  natural  resource 
(the  flow  and  use  of  a  natural  stream)  a  real  property  right, 
an  incorporeal  hereditament,  is  acquired  by  original  ownership. 
In  an  artificial  flow,  ownership  can,  as  a  general  principle,  be  ac- 
quired only  by  grant,  condemnation  or  prescription  from  the 
owner  of  the  natural  resource  supplying  the  artificial  flow;  it  is  a 
derivative  right  and  not  an  original  one.  Nature  has  created 
a  resource  in  the  flow  and  supply  of  the  natural  stream;  but 
away  from  streams  water  carried  to  other  localities  can  be  sub- 
ject only  to  such  rights  of  continuance  as  are  derived  through  the 
man  who  carries  it  and  causes  it  to  flow  there. 

It  is  simply  the  result  of  natural  conditions.  Only  owners  of 
rights  in  the  natural  streams  have  "natural  rights"  or  rights 
in  a  natural  water  body ;  all  others  derive  a  right  only  through 
some  stream-owner,  a  derivative  and  not  a  natural  right.  This 
gives  great  value  to  the  owners  of  natural  water  'resources,  and 
is  a  disadvantage  to  water  users  owning  no  rights  in  the 
stream  itself  and  building  up  improvements  at  a  distance  from 
streams  in  reliance  upon  water  coming  from  works  or  land 
of  stream  appropriators  or  riparian  owners ;  but  that  is  simply 
an  inevitable  disadvantage  inherent  in  natural  situation  away 
from  streams,  or  where  streams  have  been  all  taken  up  by  prior 
rights  where  the  law  permits  their  appropriation.7 

5  Wood  v.  Waud,  3  Ex.   748.     Ae-  water   permanently   from   its   channel, 
cord,  Goddard  on  Easements,  7th  ed.,  and  requires  it  to  be  returned  to  the 
1910,  p.  87.  -stream  so  that  natural  rights  may  ex- 

6  Kerr   on  Injunctions,   4th  ed.,   p.  ist   therein  in   favor  of   others.     (In- 
190.  fra,  sec.  709,  "Natural  Right.")      The 

"Artificial    channels   are   in   a    dif-  law   of   prior   appropriation,   however, 

ferent    legal    position    from    natural  does  not  require  such  return  in  favor 

watercourses."     Ferguson     on     Water  of  any  party  subsequent  to  a  perma- 

in   Scotland,   p.   277.  nent   diversion;    it   holds   the   natural 

7  Note  that  the  common  law   for-  resource  open  to  exclusive  ownership, 
bids   the    carrying    away   of     stream 


48     (3d  ed.)  Pt.  I.    FIRST  PRINCIPLES.  §  54 

(3d  ed.) 

§  54.  Importance  of  the  Right  of  Access  to  the  Natural  Stream. 
Since  only  the  natural  resource  is,  thus,  the  subject  of  original 
natural  usufructuary  rights  (as  distinguished  from  contract  or 
derivative  rights),  a  right  of  access  to  the  natural  resource  (the 
natural  stream)  is  indispensable  to  the  acquisition  of  rights  or 
usufructs  therein.  It  is  the  result  of  natural  conditions  which 
surround  streams  entirely  by  land  vested  in  ownership.  Since 
such  inclosing  lands  alone  have  or  can  give  a  right  of  access  to 
the  stream,  their  ownership  must  be  a  factor  which  will  inevi- 
tably shape  any  system  of  water  law. 

The  controlling  force  of  the  ownership  of  the  inclosing  lands 
controlling  access  to  the  natural  resource  is  the  accepted  basis  of 
the  common  law  of  riparian  rights  and  of  the  new  law  of  per- 
colating water.  Thus,  declaring  emphatically  that  the  water 
itself  is  not  the  subject  of  ownership  (or  is  "publici  juris"),  the 
law  of  riparian  rights  arises  directly  from  the  exclusion  of  non- 
riparian  owners  because  they  have  no  access  to  the  natural  resource 
(the  natural  stream)  without  trespassing  upon  the  riparian  lands; 
it  then  gives  equal  rights  (as  opposed  to  special  rights  by  priority 
of  use)  to  that  class  of  the  public  owning  the  lands  having  such 
access,  that  is,  the  riparian  or  inclosing  lands.8  Likewise  the  new 
law  of  percolating  water  declares  that  the  ground-water  is  not  itself 
the  subject  of  private  ownership,  just  as  of  the  water  of  streams, 
and  declares  that  it  gives  equal  rights  to  that  class  of  the  public 
owning  the  lands  having  access  to  the  natural  underground  re- 
source— that  is,  all  adjacent  or  overlying  lands.9 

And  no  less  noteworthy  is  the  way  the  right  of  access  has  affected 
the  law  of  prior  appropriation.  The  early  policy  of  the  United 
States  of  free  rights  in  the  public  lands  (approved  by  the  act  of 
1866)  afforded  free  access  to  the  streams  to  all,  and  the  law  of 
prior  appropriation  nourished;  to-day,  with  the  vast  areas  of  re- 
served or  withdrawn  lands,  the  United  States  has  largely  with- 
drawn the  right  of  access  to  the  streams,  with  the  avowed  purpose 
of  preventing  their  appropriation.10  So,  likewise,  the  rapid  pace 
of  settlement,  under  which  bordering  lands  are  passing  into  private 
hands,  restricts  the  right  of  access  in  the  same  way,  and  impedes 
appropriation  of  the  water.  It  was,  indeed,  the  passing  of  riparian 

8  Infra,  sees.   692    et   seq.,   765   et          8  Infra,  sec.  1102  et  seq. 
seq.  10  Infra,  sec.  204  et  seq. 


§  55  Ch.  4.     NATURAL  RESOUECES.  (3d  ed.)     49 

lands  into  private  hands  which  directly  brought  back  the  laws  of 
riparian  rights  in  California  (confining  appropriation  to  the  pub- 
lic lands)  ;  and  which,  in  Colorado,  to  avoid  that  result,  caused 
the  early  ruling  for  free  access  and  rights  of  way  over  private 
lands,  since  found  necessary  on  constitutional  grounds  to  discard.11 
So  the  situation  is  rapidly  arriving  where,  even  though  the  State 
law  recognizes  no  water  law  but  prior  appropriation,  yet  appro- 
priators  cannot  get  at  the  water  either  because  private  land  incloses 
the  stream  and  must  not  be  trespassed  upon,  or  because  the  inclos- 
ing land  is  public  land  and  the  United  States  refuses  the  right  to 
build  ditches  or  reservoirs  (that  is,  the  right  of  access)  except 
under  the  newly  developing  system  of  Federal  Right  of  Way  legis- 
lation. 

The  general  body  of  the  law  of  watercourses,  under  whatever 
system,  is  applicable  only  to  natural  streams  in  their  natural  situa- 
tion; and  a  right  of  access  to  this  natural  resource  through  the 
bordering  lands  is  essential  to  the  exercise  of  rights  therein,  a  de- 
terminative factor  in  any  system  of  water  law. 

(3d  ed.) 

§  55.  Artificial  Flow  Claimants  may  have  Priorities  Between 
Themselves. — Between  two  parties,  both  without  right  in  any 
natural  stream  (such  as  rival  claimants  to  waste  water  coming  from 
a  ditch  of  a  stream-owner  to  whom  both  are  strangers),  priority 
of  possession  governs  by  the  rule  of  the  common  law  that  posses- 
sion is  sufficient  title  against  a  later  mere  possession;  between  two 
parties  equally  without  right  the  one  first  in  possession  has  the 
better  standing.12  It  is  frequently  so  provided  by  statute.13 

It  should  be  noticed,  however,  that  the  Colorado  statute,  which 
has  been  the  model  for  the  others,  recognizes  a  paramount  right  in 
the  owner  of  the  natural  resource  from  which  the  waste  or  seepage 

11  Infra,  sees.  224,  225.  shall  be  governed  by  the  same  laws 

12  See  Wood  v.  Waud,  3  Ex.  748.  relating  to  priority  of  right  as  those 
For  example,  water  from  a  tunnel      ditches  constructed  for  the  purpose  of 

belongs  to  the  appropriators  receiving  utilizing      the      water      of       running 

it   as   against   all   who   are   not  privy  streams;    Provided,    that    the    person 

to  those  who  drove  the  tunnel.     Far-  upon  whose  land  the  seepage  or  spring 

mers'   Union   etc.   Co.   v.   Rio   Grande  waters  first  arise,  shall  have  the  prior 

etc.  Co.,  37  Colo.  512,  86  Pac.  1042.  right  to  such  waters  if  capable  of  be- 

See,    also,    cases    in    the    following  ing  used  upon  his  lands."    Colo.  Rev. 

note.  Stats.  1908,  sec.  3177;  M.  A.  S.  2269;- 

13  Colorado. — "All  ditches  now  con-  Laws  1889,  p.  215,  1.     See  Rev.  Stats, 
structed  or  hereafter  to  be  constructed  1908,   sec.    4231,   as   to    waste    water 
for  the  purpose  of  utilizing  the  waste,  hoisted  from  a  mine.     (See  La  Jara 
seepage  or  spring  waters  of  the  State,  etc.  Co.  T.  Hansen,  35  Colo.    105,  83 

Water  Rights — 4 


50     (3d  ed.)  Pt.  I.    FIEST  PBINCJPLES.  §  56 

comes.  The  rival  waste  claimants  merely  have  priorities  between 
themselves.  Claims  of  this  kind  between  rivals  both  subject  to  a 
paramount  title  in  a  third  person  frequently  occur  in  the  law  of 
waters ; 14  but  they  are  not  freehold  rights,  being  at  the  mercy  of 
the  paramount  owner, — in  this  case,  the  owner  of  the  natural 
supply. 

(3d  ed.) 

§  56.  But  Artificial  Flow  Claimants  have  No  Original  Rights 
Against  the  Creator  of  the  Flow,  the  Owner  of  the  Natural  Re- 
source.— While  artificial  flow  claimants  may  thus  have  priorities 
between  themselves,  they  can  have  no  right  of  continuance  against 
the  owner  of  the  natural  supply  (the  appropriator  on  the  natural 
stream,  or  in  California,  the  riparian  owner) ,  except  by  grant,  con- 
demnation or  dedication  (or  by  the  rule  of  compulsory  service 
where  the  water  is  distributed  to  public  use)  .14a 

The  chief  instance  of  artificial  flows  in  practice  is  where  some 
stream-owner  has  carried  water  to  a  distance  and,  after  use,  dis- 
charges it  below  his  land  or  works.  Where  this  discharge  is  into 
a  stream,  the  matter  is  more  particularly  considered  in  a  later 
section;  but  the  simplest  case  is  where  there  is  no  stream  at  the 
point  of  discharge,  and  the  waste  simply  makes  its  way  off  over 
a  dry  gulch  or  other  theretofore  waterless  configuration  of  the 
land.  Seeing  the  water  come  down,  other  parties  arrive,  build 

Pae.   644.     See,  also,  Eipley  v.   Park  Oregon. — See  Brosnan  v.  Harris,  39 

etc.  Co.,  40  Colo.  129,  90  Pac.  75.)  Or.  148,  87  Am.  St.  Rep.  649,  65  Pac. 

Idaho—  Section  3246,  Rev.  Codes,  is  867,  54  L.  R.  A.  628 ;  Hough  v.  Por- 

copied     from    the     Colorado     statute,  ter,  51  Or.  318,  95  Pac.  732,  98  Pac. 

supra.     The   act   embodying   this   sec-  1083,  102  Pac.  728. 

tion  was  passed  in   1899.     See  Laws  South  Dakota. — Laws  1905,  p.  201, 

1899,  p.  380,  sec.  23.     See  concurring  eec.  56.     See  Laws  1907,  e.   180,  see. 

opinion  of  Sullivan,  C.  J.,  in  Gerber  57,   requiring   payment   to   the   owner 

v.  Nampa  Irr.  Dist.,  16  Idaho,  1,  100  of  works  from  which  seepage   comes, 

Pac.    80 ;  •  Saunders    v.    Robison,    14  before  right  thereto  is  acquired. 

Idaho,  770,  95  Pac.  1057.  Washington. — Sec.     5829,     Pierce's 

Nebraska. — (Substantially    a    copy  Code  of  1905.     See  Dickey  v.  Maddux, 

of  the   Colorado   act.)      Comp.   Stats.  48  Wash.  411,  93  Pac.  1090;  Nielson 

1903,  see.  6452;  Cobbey's  Ann.  Stats.  v.  Sponer,  46  Wash.  14,  123  Am.  St. 

6798;   Laws   1895,  c.   69,  p.  260,  see.  Rep.     910,     8ft    Pac.     155.     This     is 

44.  copied    from    the    Colorado    statute, 
New    Mexico. — Laws    1907,  p.    71,  supra. 

sec.  53.  See  Vanderwork  v.  Hewes  Some  of  these,  such  as  the  New 

(N.  M.),  110  Pae.  567.  Mexico  and  South  Dakota  statutes, 

North  Dakota. — Stats.  1905,  c.  34,  recognize,  between  seepage  claimants, 

sec.  49;  Rev.  Codes  (1905),  sec.  7604  priority  in  him  who  first  obtains  per- 

et  seq.  mit  from  the  State  Engineer. 

Oklahoma. — Laws  1905,  p.  224,  sec.  14  Infra,  sees.   246:   627. 

45.  I4a  Infra,  sec.  1248  et  seq. 


§  57  Ch.  4.     NATURAL  RESOURCES.  (3d  ed.)     51 

ditches  below,  receive  the  water  and  put  it  to  use.  Yet  unless  they 
have  a  contract  with  the  stream-owner,  they  must  generally  rely 
upon  continued  receipt  from  him  of  such  water  at  their  peril.  In 
such  case  the  creator  of  this  artificial  flow  may  cease  to  allow 
it  to  escape.  So  long  as  he  permits  it  to  go  down,  the  lower  takers 
have  a  right  to  all  that  comes;  so  much  he  has  abandoned,  and  can- 
not recapture;  with  its  use  he  has  no  concern.15  But  it  is  only 
the  specific  water  run  waste  that  is  abandoned,  not  any  of  the  in- 
coming water;  the  owner's  water-right  in  the  flow  and  use  of  the 
natural  stream  remains  unaffected  and  unlimited  by  anything  that 
happens  to  the  waste  away  from  any  stream.  Whenever  he  will 
he  may  begin  to  retain  it  and  prevent  its  escaping  in  the  future, 
or  may  change  his  use  so  that  it  escapes  in  another  place  (the  law 
limiting  changes,  elsewhere  considered,  applies  only  to  natural 
streams)  ; 16  and  generally  may  exercise  dominion  over  its  continu- 
ance even  though  it  be  to  the  detriment  of  those  to  whom  it  has 
come  while  allowed  to  escape.17 

Some  simple  illustrations  will  show  that  this  must  obviously  be 
so.  May  not  the  original  appropriator  from  the  stream,  the  owner 
on  the  natural  resource,  abandon  his  ditch  when  it  gets  old,  the 
abandonment  resulting  in  that  it  no  longer  carries  waste  to  the 
waste  claimants — or,  if  it  breaks,  must  he  keep  it  in  repair  for  the 
benefit  of  the  waste  users  ?  Would  the  flow  of  water  from  the  eaves 
of  a  house  give  a  right  to  the  neighbors  to  insist  that  the  house 
should  not  be  pulled  down  or  altered,  so  as  to  diminish  the  quan- 
tity of  water  flowing  from  the  roof?  Would  the  fact  that  my 
pump  has  for  years  dripped  water  onto  a  neighbor's  ground  give 
him  a  right  to  say  that  my  pump  must  go  on  leaking? 

(3d  ed.) 

§  57.  Same. — As  the  water  in  a  ditch  is  private  property,  the 
landowner  through  whose  land  the  ditch  runs,  or  into  which  a  ditch 
discharges,  can  claim  no  riparian  rights  therein  against  the  ditch- 
owner,  for  riparian  rights  exist  only  in  natural  streams,  whose 
waters  are  publici  juris.™  A  nonriparian  owner  receiving  the 

15  Supra,  sec.  37.  submission  on  the  part  of  the  lower 

16  Infra,  sees.  496,  5.00.  proprietor  to  proceedings  which  indi- 

17  The  mere  discharge  of  water  by  cate  a  claim  of  right  on  the  part  of 
an  upper  proprietor  upon  the  land  of  the  proprietor  above,  but  it  is  difficult 
a  lower  may  easily  establish  a  right  for  the  lower  proprietor  to   establish 
on   the   part  of  the  upper  proprietor  a  right  to  have  the  flow  continued. 

to  go  on  discharging,  because  so  long  18  Davis  v.  Martin  (1910),  157  Cal. 

as  the    discharge    continues    there   is      657,     108     Pac.     867  j     Creighton    v. 


52     (3d  ed.) 


Pt.I.     FIRST  PRINCIPLES. 


557 


waste  from  the  ditch  of  a  riparian  owner  does  not  thereby  acquire 
any  right  in  the  stream  from  which  the  water  originally  comes,  nor 
any  right  (aside  from  grant)  to  have  the  riparian  owner  continue 
the  supply.19  Nor  is  it  subject  to  the  acquisition  (against  the 
creator  of  the  flow)  of  a  continuous  right  of  flow  and  use  by  ap- 
propriation under  the  law  of  prior  appropriation,  for  the  law  of 
appropriation,  properly  speaking,  as  a  law  of  freehold  rights,  applies 
likewise  only  to  the  flow  of  a  natural  stream.20 

In  the  absence  of  contract,  the  natural  water-right  owner 
may  cease  the  abandonment  of  waste  from  a  ditch,  and  so 
use  the  water  that  none  of  it  thereafter  runs  waste,  or  so  that 
it  runs  off  in  a  new  place  where  people  below  no  longer  can  get 
it.21  Long  receipt  by  them  of  the  water  of  itself  gives  no  per- 
manent right  to  have  the  discharge  continued,  whether  by  appro- 
priation, prescription  or  estoppel,  even  though  the  lower  claimants 
built  expensive  ditches  or  flumes  to  catch  the  waste.22  The  claim 


Kaweah  Co.,  67  Cal.  221,  7  Pac.  658; 
Green  v.  Carotta,  72  Cal.  267,  13  Pac. 
685;  Arkwright  v.  Gell,  5  Mees.  &  W. 
225,  2  H.  &  H.  17;  Ranney  v.  St. 
Louis  Co.,  137  Mo.  App.  537,  119  S. 
W.  484.  Compare  the  French  law 
as  given  in  "Droit  Civile  Francais," 
by  Aubrey  &  Rau,  4th  ed.,  vol.  Ill,  p. 
48.  "Proprietors  nonriparian  to  the 
natural  flow  of  the  water  are  not  al- 
lowed, as  riparian  to  an  artificial 
canal  leading  from  the  stream,  to  de- 
mand that  the  canal  owner  transmit 
to  them  the  water  thus  derived." 
("Les  proprietaires  non-riverains  d'un 
cours  d'eau  naturel  ne  sont  pas  aclmis, 
comme  riverains  d'un  canal  artificiel 
derive  de  ce  cours  d'eau,  a  demander 
que  le  proprietaire  du  canal  leur 
transmette  les  eaux  ainsi  derivees.") 
19  Davis  v.  Martin,  157  Cal.  657,  108 
Pac.  866.  In  this  case  the  court  said, 
per  Mr.  Justice  Shaw:  "The  Martin 
ranch  abutted  upon  the  stream  and 
the  riparian  rights  attaching  to  said 
lands  by  reason  of  this  contiguity 
were  paramount  to  the  rights  of  any 
appropriator.  Being  the  owners  of 
the  land  bordering  its  banks,  they 
could  control  its  flow  and  prevent 
others  from  diverting  it  at  any  point 
on  their  lands.  There  was  no  evi- 
dence or  finding  that  the  plaintiffs 
ever  obtained  by  purchase  or  grant 
from  the  owners  of  the  Martin  ranch 


any  right  whatever  either  to  maintain 
the  ditch  over  that  ranch,  or  to  use 

the   water   of   the   stream The 

only  part  thereof  which  the  plaintiffs 
succeeded  in  obtaining  for  use  on 
their  land  was  such  waste  waters  as 
the  owners  of  the  Martin  ranch  al- 
lowed to  pass  through  the  ditch  be- 
yond their  boundaries." 

20  Cases  just  cited.    Helm,  C.  J.,  in 
Farmers'   etc.   Co.    v.   Southworth,   13 
Colo.   Ill,  21  Pac.   1029,  4  L.  R.  A. 
767,    says:    "The    constitution    recog- 
nizes priorities  only  among  those  tak- 
ing    water     from     natural     streams." 
(See,     also,     Dickey    v.    Maddux,     48 
Wash.    411,    93     Pac.     1090.)     Other 
authorities    are    hereinafter     cited    in 
dealing  with  specific  examples  in  the 
following  sections. 

21  Davis   v.    Martin,    157   Cal.    657, 
108   Pac.   866;   Hanson  v.  McCue,  42 
Cal.  303,  10  Am.  Rep.  299   (commented 
on  in  Katz  v.  Walkinshaw,  141    Cal. 
116,  at  129,  99  Am.  St.  Rep.  35,   70 
Pac.   663,   74  Pac.   766,   64  L.   R.   A. 
236)  ;   Correa  v.  Frietas,  42  Cal.  339, 
at  343;   2  Morr.  Min.  Rep.  336. 

22  The  following  are  cited  only  as 
examples   (see,  also,  cases  cited  infra, 
sec.  593,  "estoppel")  : 

Dougherty  v.  Creary,  30  Cal.  290, 
89  Am.  Dec.  116,  1  Morr.  Min..  Rep. 
35;  Stone  v.  Bumpus,  40  Cal.  428, 
4  Morr.  Min.  Rep.  271;  Hanson  v. 


§  57  CK  4.     NATURAL  EESOUECES.  (3d  ed.)     53 

to  a  continuance  of  such  lower  use  by  estoppel  is  frequently  made, 
on  the  ground  that  the  ditch-owner  allowing  the  discharge  down 
the  gulch  knew  of  the  expectation  of  the  person  receiving  the  dis- 
charge, and  of  the  expense  incurred  in  putting  it  to  use.  But  in 
a  leading  case23  the  court  says  on  this  point:  "We  have  been  cited 
to  no  authority,  and  know  of  none,  that  holds  that  the  bare  fact 
that  the  ditch  was  constructed  with  the  knowledge  of  the  plaintiffs 
and  their  grantors,  and  without  objection  on  their  part,  though  at 
heavy  cost,  is  sufficient  to  operate  an  estoppel.  There  must  be  some 
degree  of  turpitude  in  the  conduct  of  a  party  before  a  court  of 
equity  will  estop  him  from  the  assertion  of  his  title — the  effect 
of  the  estoppel  being,  to  forfeit  his  property,  and  transfer  its  en- 
joyment to  'another."24  Estoppels  may  arise  from  proper  facts, 
but  not  from  merely  receiving  water  that  another  discharges.25 

Lower  user  based  purely  upon  discharged  waste  from  a  ditch 
or  tunnel,  etc.,  gives  no  permanent  rights,  and  to  this  effect  some 
quotations  are  here  given,  including  cases  where  the  waste  found 
its  way  to  the  lower  claimants  by  percolation. 

"The  plaintiffs  could  acquire  no  other  than  a  mere  privilege  or 
right  to  the  use  of  the  waste  water,  or,  at  most,  but  a  secondary 
and  subordinate  right  to  that  of  the  first  appropriators,  and  only 
such  as  was  liable  to  be  determined  by  their  action  at  any  time,  unless 
the  water  had  been  turned  back  into  the  original  channel "  * 

McCue,  42  Cal.  303,  10  Am.  Eep.  299;  21  Morr.  Min.  Eep.  699;  Wimer  v. 
Correa  v.  Frietas,  42  Cal.  339,  2  Morr.  Simmons,  27  Or.  1,  50  Am.  St.  Eep. 
Min.  Eep.  336;  Stockman  v.  Eiver-  685,  39  Pae.  6;  Crescent  etc.  Co.  v. 
side  etc.  Co.,  64  Cal.  57,  at  59,  28  Silver  King  etc.  Co.,  17  Utah,  444,  70 
Pac.  116;  Anaheim  etc.  Co.  v.  Semi-  Am.  St.  Eep.  810,  54  Pac.  244.  See 
Tropic  etc.  Co.,  64  Cal.  185,  30  Pac.  Yale  on  Mining  Claims  and  Water 
623;  Lux  v.  Haggin,  69  Cal.  255,  at  Eights,  201;  Arkwright  v.  Gell,  5 
266,  10  Pac,  674  (disapproving  Parke  Mees.  &  W.  226,  2  H.  &  H.  17;  Mason 
v.  Kilham,  8  Cal.  77,  68  Am.  Dec.  v.  Shrewsbury  etc.  Ey.  Co.  [1871], 
310,  4  Morr.  Min.  Eep.  522,  on  this  L.  E.  6  Q.  B.  578;  Greatrex  v.  Hay- 
point)  ;  Lakeside  Ditch  Co.  v.  Crane,  ward  [1853],  8  Ex.  291,  22  N.  J.  Ex. 
80  Cal.  181,  22  Pac.  76;  Hargrave  v.  137. 

Cook,  108  Cal.  72,  41  Pac.  18,  30  L.  23  Stockman  v.   Eiverside   etc.  Co., 

E.  A.  390;  Davis  v.  Martin,  157  Cal.  64  CaL  57    at  59    28  Pac.  116 

657,  108  Pac.  866;   Fairplay  etc.  Co.  „,  r,.,.         ,,                   ,,        ,     ,,. 

J™    .        „ o '  n  i      -i OK    R7  T>O/,    ifln  24  Citing    Boggs    v.    Merced    Mm. 

91  ™  V  p  7^'  I  k^rl  v  Co->  14  Cal.  W3/10  M°".  Min.  Eep. 
21  Morr.  Mm  Eep.  725;  Burkhart  v.  ^  TM  .  in'accord  with  the  leaj. 

p '  £I'««P ?  QQ  fiT  w  A  ^1  iQg  English  case  of  Arkwright  v. 
Eep.  2(9,  86  Pac.  99,  6  L.  E.  A.,  N.  S.,  gg,  5  »  -  &  W  2"6  2  H  &  H  17 

1104;  Smith  etc.  Co.  v.  Colorado  etc.  "J  J 

Co.,  34  Colo.  485,  82  Pac.  940,  3  L.  5  Infra,  sees.  556,  593,  594. 

E.  A.,  N.  S.,  1148;   Cardelli  v.  Com-  l  Woolman  v.   Garringer,   I    Mont. 

stock  Co.,  26  Nev.  284,  66  Pac.  950,  544,  1  Morr.  Min.  Eep.  675. 


54     (3d  ed.)  Pt.  I.     FIRST  PRINCIPLES.  §  57 

In  Hanson  v.  McCue  :2  "This  ditch,  in  its  course  over  Hanson's  land, 
leaked  water  in  such  quantities  that  it  collected  into  a  stream,  which 
Hanson  used  for  irrigation.  This  was  the  only  foundation  for  the 
right  which  Hanson  had  or  claimed  to  the  water.  The  court  prop- 
erly held  that  he  had  no  right  to  the  waste  water,  and  that  McCue 
was  not  bound  to  continue  to  maintain  the  artificial  stream  for 
Hanson's  benefit,  but  could,  by  any  means  he  chose,  change  the  use 
of  the  spring  and  the  course  of  the  ditch."  In  a  recent  California 
case  it  was  ruled  that  use  for  many  years  of  waste  coming  from  a 
ditch  does  not  of  itself  give  any  right  of  action  against  the  ditch- 
owner  when  he  thereafter,  for  his  own  use,  cuts  off  the  waste.3 

Waste  water  soaking  from  the  land  of  another  after  irrigation 
need  not  be  continued,  and  may  be  intercepted  and  taken  by  such 
original  irrigator,  and  conducted  elsewhere,  though  parties  there- 
tofore using  the  waste  are  deprived  thereof.  In  one  case4  plain- 
tiff had  dug  a  ditch  along  the  boundary  of  her  land,  thereby 
collecting  the  seepage  from  the  irrigation  of  her  neighbor  above. 
The  latter  dug  a  parallel  ditch  on  his  own  land,  collecting  the  seep- 
age for  himself  and  using  it  elsewhere.  The  court  says:  "The 
plaintiff  certainly  has  acquired  no  vested  right  to  compel  the  de- 
fendants to  apply  the  waters,  the  right  to  the  use  of  which  they 
own,  in  such  a  way  as  that  some  of  it  will  not  soak  into  their  own 
ground,  but  escape  and  pass  from  the  surface  onto  her  lands. 
The  defendants  have  the  right  to  change  the  place  and  manner  of 
use,  or  reduce  the  quantity  applied  to  their  lands,  so  that  no  water 

whatever  will  escape  and  reach  the  lands  of  plaintiff The 

plaintiff  does  not  assert  the  right  to  the  use  of  this  water  by  virtue 
of  an  appropriation  made  from  the  same  stream,  or  any  of  its 
tributaries,  which  are  the  source  of  defendants'  supply.  She  can- 
not, therefore,  like  a  prior  or  junior  appropriator  of  water  from 
the  same  stream,  insist  on  the  economical  use  of  •  the  defendants 

of  their  appropriation By  mere  acquiescence  on  their  part 

to  plaintiff's  use  after  waste  water  has  passed  from  their  lands 
they  have  not  estopped  themselves  thereafter  to  intercept  and  make 
beneficial  use  of  it  before  it  escapes  from  their  control."5 

2  As  commented  on  by  Shaw,  J.,  in          *  Burkhart  v.  Meiberg,  37  Colo.  187, 
Katz    v.    Walkinshaw,    141    Cal.    116,       119   Am.    St.    Rep.    279,    86   Pac.   98, 
99  Am.  St.  Rep.  35,  70  Pac.  663,  74       6  L.  R.  A.,  N.  S.,  1104. 

Pac.  766,  64  L.  R.  A.  236.  5  Where  a  canal  company  furnishes 

3  Davis    v.    Martin,    157    CaL    657,       an  applicant  with  waste  water  from  n 
108  Pac.  866.  drain     ditch,     supplied     wholly    with 


§57 


Ch.4.     NATUEAL  RESOURCES. 


(3d  ed.)     55 


No  action,  therefore,  will  lie  for  an  injury  by  the  diversion  of  an 
artificial  watercourse,  where  from  the  nature  of  the  case  it  is  ob- 
vious that  the  enjoyment  of  it  depends  upon  temporary  circum- 
stances and  is  not  of  a  permanent  character.6  This,  if  sanctioned, 
would  present  a  case  of  the  servient  owner  being  allowed  to  compel 
the  dominant  one  to  continue  a  discharge  of  water  and  to  prevent 
him  from  altering  its  course,  and  thus  to  invert  their  relative  posi- 
tions. No  such  right  exists  in  the  servient  proprietor.7 

The  point  of  view  is  that  the  water  issuing  from  the  discharge 
must  be  considered  as  a  corpus,  so  that  no  question  of  a  continuous 


water  wasting  from  other  lands,  the 
user  thereof  cannot  compel  the  canal 
company  to  maintain  such  waste 
water,  even  though  a  rental  is  charged 
therefor  when  used;  for  the  rights  of 
the  user  depend  wholly  upon  the 
water  wasted  into  the  drain  ditch. 
Gerber  v.  Nampa  Irr.  Dist.,  16  Idaho, 
1,  100  Pae.  80. 

6  Wood  v.  Waud,  3  Ex.  747;  Gale 
on     Easements,     181;     Arkwright     v. 
Gell,  supra;  Duncan  v.  Bancroft,  110 
Mass.  267;  Waffle  v.  New  York  Cent. 
R.  R.  Co.,  53  N.  Y.  11,  13  Am.  Rep. 
467;    58   Barb.   413;    2  Washburn   on 
Real  Property,  72. 

7  A   recent   writer    (Mr.     Mills,   of 
Denver,  Colorado,  in  Mills'  Irrigation 
Manual,    p.     53)    says:    "An     appro- 
priator   of    waste    water    acquires   a 
right    only    to    whatever    water    flows 
from  the  ditch  or  canal  through  which 
the  first  use  is  made,  after  the  wants 
and   necessities    of   the   appropriators 
under  such  ditch  or  canal  have  been 
supplied,  and  such  appropriation  does 
not  carry  a  right  to  any  specific  quan- 
tity of  water,  nor  the  right  to  inter- 
fere with  the  water   flowing  in  such 
ditch  or  canal,  and  the  appropriators 
under  such  ditch  or  canal  are  under 
no   obligation   to   permit   any   specific 
quantity   of   water   to    be    discharged 
as  waste  for  his  benefit." 

An  English  case  says:  "If  the 
stream  flows  at  its  source  by  the 
operation  of  nature — that  is,  if  it  is 
a  natural  stream — the  rights  and  lia- 
bilities of  the  party  owning  the  land 
at  its  source  are  the  same  as  those 
of  the  proprietors  in  the  course  below. 
If  the  stream  flows  at  its  source  by 
the  operation  of  man — that  is,  if  it  is 
an  artificial  stream — the  owner  of  the 
land  at  its  source  or  the  commence- 


ment of  the  flow  is  not  subject  to  any 
rights  or  liabilities  toward  any  other 
person,  in  respect  of  the  water  of  that 
stream.  The  owner  of  such  land  may- 
make  himself  liable  to  duties  in  re- 
spect of  such  water  by  grant  or  con- 
tract; but  the  party  claiming  a  right 
to  compel  performance  of  those  duties 
must  give  evidence  of  such  right  be- 
yond the  mere  suffering  by  him  of 
the  servitude  of  receiving  such 
water."  Gaved  v.  Martyn,  19  Com. 
B.,  N.  S.,  759,  760. 

"If  such  a  stream  be  of  a  tem- 
porary and  precarious  character, 
owing  its  existence  solely  to  opera- 
tions carried  on  for  the  beneficial  use 
of  the  alleged  servient  tenement,  it 
will  be  difficult,  if  not  impossible,  for 
an  inferior  heritor  to  qualify  a  right 
to  its  continuance."  Ferguson  on 
Water  in  Scotland,  pp.  277,  278.  A 
civil-law  writer  finds  the  rule  to  be 
the  same  under  that  system,  saying: 
"I  have  been  able  to  allow  it  to  run 
out  of  my  property,  because  it  was 

useless  to  me I  have  been  able 

to  permit  that  you  should  make  on 
your  field  works  to  collect  it,  because 
I  had  no  right  to  prevent  them,  since 
each  one  can  do  on  his  property  that 
which  appears  most  convenient  to  him, 
but  not  on  that  account  have  you  ac- 
quired the  right  to  the  water  which 
has  not  yet  flowed  out  of  my  field, 
but  only  to  that  which  may  be  al- 
ready outside  of  my  possession;  and 
thus  it  is,  that  I  can  retain  it,  con- 
vert it  to  new  uses,  and  even  dry 
up  the  spring,  which,  perhaps,  may 
be  prejudicial  to  me."  Eschriche, 
"Aguas,"  sec.  4,  translated  from  the 
Spanish.  See,  also,  the  French  writer 
quoted  at  the  beginning  of  this  sec- 
tion. 


56     (3d  ed.)  Pt.  I.    FIRST  PKINCIPLES.  §  58 

usufructuary  right  in  a  natural  resource  can  be  involved.  So  much 
of  the  corpus  as  is  discharged  is  "returned  to  the  public,"  and 
may  be  taken  by  the  man  to  whom  it  comes,  but  receiving  it  gives 
him  no  right  in  any  of  the  substance  that  has  not  yet  come  to  him. 
He  deals  with  the  corpus  of  water  and  not  with  its  natural  flow. 
The  law  of  appropriation  as  a  system  of  permanent  freehold  rights, 
and  the  law  limiting  change8  properly  can  apply  only  to  rights  in 
a  natural  watercourse.  As  was  said  in  Colorado  by  Mr.  Justice 
Helm:  "The  constitution  recognizes  priorities  only  among  those 
taking  water  from  a  natural  stream."9 

Waste  claimants  at  a  distance  from  streams  have  no  rights  of  con- 
tinuance against  the  owner  on  the  natural  resource,  or  the  creator  of 
the  waste  flow.  Should  the  statutes  above  mentioned 10  be  thought  to  x 
attempt  to  bind  a  stream-owner  against  his  will  to  waste  claimants 
disconnected  with  any  stream,  they  would  be  taking  from  owners 
on  the  natural  resource  the  control  of  their  property,  and  would 
seem  unconstitutional  as  depriving  them  of  an  essential  element 
of  their  property  right  without  due  process  of  law.11 

(3d  ed.) 

§  58.  Same. — "While  the  foregoing  was  addressed  more  di- 
rectly to  water  discharged  as  waste  from  a  ditch  or  flume  or  similar 
structure,  yet  the  authorities  given  also  involve  water  escaping  by 
seepage,  and  the  principle  is  entirely  the  same.  No  question  of  a 
continuous  water- right  is  involved  (aside  from  prescription  or  con- 
tract, etc.)  except  where  rights  can  be  asserted  directly  or  indirectly 
in  a  natural  stream. 

The  discharge  of  drainage  water  through  a  tunnel  stands  on  the 
same  footing,  with  the  additional  strength  that,  while  the  discharge 
considered  in  the  last  section  was  not  of  water  artificially  collected 
(but,  instead,  originally  existing  in  a  natural  body  and  diverted 
therefrom) — here  the  water  is  itself  artificially  collected,  as  well 
as  artificially  confined.  The  question  arises  in  cases  of  water 
pumped  from  a  mine  and  run  off  in  a  ditch.  The  leading  case  in 
which  this  situation  is  considered  is  the  English  case  of  Arkwright 
v.  Gell,12  in  which  the  opinion  was  by  Baron  Parke,  to  whose  opin- 

8  Infra,  sec.  496  et  seq.  n  See     Dickey     v.      Maddox,     48 

9  Farmers'   etc.   Co.  v.   Southworth,  Wash.  411,  93  Pac.   1090;   Nielson  v. 
13  Colo.  120,  21  Pac.  1028,  4  L.  E.  A.  Sponer,    46    Wash.    14,    123    Am.    St. 
767.  Kep.  910,  89  Pac.   155. 

10  Supra,   sec.   55.  12  5  Mees.  &  W.  226,  2  H.  &  H.  17. 


§  58  Ch.  4.     NATUEAL  RESOUKCES.  (3d  ed.)     57 

ions  the  law  owes  much  to  the  clear  presentation  of  the  distinction 
between  the  corpus  of  water  and  a  usufructuary  right.  He  says 
the  stream  coming  from  the  mine  is  not  governed  by  the  law  of 
natural  watercourses,  and  proceeds: 

"This  was  an  artificial  watercourse,  and  the  sole  object  for  which 
it  was  made  was  to  get  rid  of  a  nuisance  to  the  mines,  and  to  enable 
their  proprietors  to  get  the  ores  which  lay  within  the  mineral  field 
drained  by  it ;  and  the  flow  of  water  through  that  channel  was,  from 
the  very  nature  of  the  case,  of  a  temporary  character,  having  its 
continuance  only  whilst  the  convenience  of  the  mine-owners  re- 
quired it,  and  in  ordinary  course  it  would  most  probably  cease  when 
the  mineral  ore  above  its  level  should  have  been  exhausted."  As 
to  the  lower  claimant  who  received  and  put  to  use  this  water,  "He 
would  only  have  a  right  to  use  it,  for  any  purpose  to  which  it  was 
applicable,  so  long  as  it  continued  there."  Time  would  raise  no 
presumption  of  a  grant  nor  found  any  claim  to  a  continuance  of 
the  discharge;  for  "the  mine-owner  could  not  bring  any  action 
against  the  person  using  the  water,"  so  as  to  make  him  stop  using 
it ;  and  consequently  such  use  did  not  in  any  way  concern  or  bind 
the  mine-owner.  "We  therefore  think  that  the  plaintiffs  never  ac- 
quired any  right  to  have  the  stream  of  water  continued  in  its 
former  channel."13 

A  modern  illustration,  entirely  to  the  same  effect,  arose  out  of 
the  waters  flowing  from  the  Sutro  tunnel,  below  Virginia  City, 
Nevada.  Plaintiffs  used  waste  water  that  was  being  pumped  from 
the  Comstock  mines,  and  discharged  in  large  volume  through  the 
Sutro  tunnel,  which  had  been  built  to  drain  those  mines.  This 
discharge,  the  court  held,  was  an  artificial  stream,  and  not  subject 
to  appropriation  by  plaintiff  so  as  to  give  any  right  against  the  tun- 
nel company.  The  court  put  this  case:  "One  further  illustration: 
A,  by  artificial  means,  fills  a  tank  or  reservoir  on  his  own  land  to- 
day, and  permits  the  waters  to  flow  down  to  B  's  land  and  irrigate 
B  's  land.  Probably  A 's  conduct  gives  to  B  the  right  to  that  water 
— that  individual  tank  or  reservoir  full.  But  suppose  A  fills  the 
same  tank  or  reservoir  to-morrow,  but  chooses  to  use  this  water — 
this  tank  or  reservoir  full — to  irrigate  his  own  land;  what  right 
has  B  to  this  last  water?  "We  think  none,  and  it  makes  no  material 
difference  if  such  a  state  of  things  were  kept  up  for  a  long  num- 

13  Accord,   Wood   v.   Waud,   3   Ex.      Water  in  Scotland,  p.  277  et  seq. 
775.     See,  also,  Ferguson  on  Law  of 


58     (3d  ed.)  Pt.  I.     FIRST  PRINCIPLES.  §  59 

ber  of  years.  In  such  case,  time  would  raise  no  presumption  of 
grant,  and  A  could  at  any  time  stop  the  production  of  such  arti- 
ficial and  temporary  stream;  and  he  could  also,  at  any  time,  if  he 
continued  the  production  of  such  stream,  put  the  waters  thereof 
to  his  own  use."14  In  this  case,  counsel  argued  "That  such  waters 
are  just  as  absolutely  the  property  of  the  corporation  defendant 
as  if  such  water  were  manufactured  each  day  from  oxygen  and 
hydrogen  by  the  corporation  defendant." 

A  distinction  may,  perhaps,  be  made  between  such  tunnel  water 
and  an  artesian  well.  The  water  from  an  artesian  well,  though 
artificially  started,  thereafter  flows  naturally.  It  has  been  held, 
that  where  an  artesian  well  was  drilled  on  an  oil  claim  on  public 
land,  and  both  the  well  and  claim  were  then  abandoned,  the  flow 
from  the  well  was  a  stream  to  which  the  law  of  appropriation  ap- 
plied thereafter.15  Another  case  also  distinguished  between  arte- 
sian wells  flowing  naturally  and  wells  requiring  pumping.18 

(3d  ed.) 

§  59.  Some  Qualifications. — It  is  possible  that  the  owner  of 
the  natural  supply  may  be  prevented  from  capriciously  cutting  off 
an  artificial  supply  of  water  which  another  has  long  enjoyed,  when 
that  is  done  without  any  fair  object  of  his  own  to  promote,  or  is 
done  merely  to  injure  the  other;  but  that  would  be  an  innovation 
upon  the  general  rule  that  the  motive  with  which  an  act  is  done  is 
immaterial.  Such  innovation  has  been  made  in  natural  percolating 
water  cases,  denying  a  right  to  cut  off  another's  natural  percolating 
supply  except  for  the  reasonable  use  of  one's  own  land;17  but  it  has 
not,  as  yet,  entered  into  the  authorities  here. 

But  there  is  one  clear  qualification;  and  there  are  two  others 
upon  which  the  law  is  not,  however,  settled.  The  clear  exception 
is  where  rights  are  acquired  against  the  creator  of  the  flow  by  grant, 
condemnation  or  dedication.  The  two  others  are  possibly  the 
cases  where  an  artificial  flow  of  water  from  a  foreign  source  is 
allowed  to  enter  and  enrich  a  natural  stream,  and  the  cases  in  the 

14  Cardelli  v.  Comstock    T.  Co..  26  etc.  Co.  v.  Weston,   29   Colo.   125,  67 

Nev.  284,  66  Pac.  950,  21  Morr.  Min.  pac.   160,  21  Morr.  Min.  Rep.  725. 
Rep.  699.     Accord  as  to  mine  tunnel  15  De    WolfskiU    v.    Smith,    5    Cal. 

waters,    Crescent    etc.    Co.    v.    Silver  ^f^rt^m™  Cal.  App.  233, 

King  etc.  Co.,  17  Utah,  444,  70  Am.  9!  pac.  gll. 
St.  Rep.  810,  54  Pac.  244;  Fairplay          "  Infra,  sec.  1119  et  seq. 


§  60  Ch.  4.     NATUEAL  RESOURCES.  (3d  ed.)     59 

West  where  consumers  from  a  distributing  canal  are  held  to  be 
owners  of  the  natural  stream  through  the  intermediate  agency  of 
the  distributing  system.  These  are  considered  in  the  following  sec- 
tions in  the  order  named. 

(Before  doing  so,  mention  may  be  made  of  an  apparent  qualifica- 
tion under  the  rule  of  compulsory  service  where  water  is  received 
from  a  canal  devoting  it  to  public  use.17*  That,  however,  is  a  matter 
only  collateral  to  the  law  of  watercourses.) 

(3d  ed.) 

§  60.  Qualification  by  Grant,  Condemnation,  or  Dedication. 
That  rights  may  be  obtained,  against  the  owner  of  the  natural 
supply,  by  grant  or  condemnation,  needs  no  exposition. 

There  is  further  an  established  principle  that  by  lapse  of  time 
an  artificial  watercourse  may  come  to  be  regarded  as  equivalent 
to  a  natural  one.  These  cases  do  not  depend  exactly  upon  prescrip- 
tion, for,  as  above  shown,  prescription,  properly  speaking,  cannot 
run  in  favor  of  lower  parties  upon  a  flow  as  against  parties  high 
up.18  They  rest  rather  upon  what  some  of  the  cases  call  an  ordi- 
nary dedication  to  a  class  of  public  which,  in  the  course  of  time, 
has  established  itself  upon  the  basis  of  the  artificial  condition. 
Where  the  creator  of  the  artificial  condition  intended  it  to  be  per- 
manent, and  a  community  of  landowners  or  water  users  has  been 
allowed  to  adjust  itself  to  the  presence  and  existence  of  the  arti- 
ficial watercourse  or  other  artificial  condition,  acting  upon  the 
supposition  of  its  continuance,  and  this  has  proceeded  for  a  long 
time  beyond  the  prescriptive  period,  the  new  condition  will  be  re- 
garded as  though  it  were  a  natural  one,  its  artificial  origin  being 
then  disregarded  by  the  law  as  it  has  been  by  the  community.  The 
creator  of  the  artificial  watercourse  will  be  held  to  have  dedicated 
it  to  the  use  of  the  community  that  has  by  long  time  become  ad- 
justed to  it.19 

I7a  Infra,  sec.  1280.  St.  Rep.  382,  83  N.  E.  893,  16  L.  R. 

18  Supra,  sec.   56  et  ssq.  A.,    N.    S.,    280,    14   Ann.    Gas.    907; 

19  Paige  v.  Rocky  Ford  etc.  Co.,  83  Shepardson  v.  Perkins,  58  N.  H.  354; 
Cal.  84,  at  93,  21  Pac.  1102,  23  Pae.  City  of  Reading  v.  Althouse,   93  Pa. 
875;    Matheson    v.    Ward,    24    Wash.  405;  Woodbury  v.  Short,  17  Vt.  386, 
407,   85    Am.    St.   Rep.    955,    64    Pac.  44  Am.  Dec.  344;   Foetl  v.  Whitlock, 
520;  Hollett  v.  Davis,  54  Wash.  326,  27  Vt.  265;  Beeston  v.  Waite  (1856), 
103    Pac.    423;    Hough   v.   Porter,   51  5     El.    &   B.     986;     Bailey   v.     Clark 
Or.   318,  95   Pac.   732,  98   Pae.   1083,  (1902),  1  Ch.  649;   Nuttall  v.  Brace- 
102  Pac.  728;  Stimson  v.  Inhabitants  well,  L.  R.   2  Ex.  1;  Ivimey  v.  Stocker, 
of  Brookline,  197  Mass.  568,  125  Am.  L.  R.,  1  Ch.  App.  396;   Whitmore  v. 


60     (3d  ed.)  Pt.  I.     FIRST  PRINCIPLES.  §  61 

Where  the  owner  of  the  land  has  artificially  changed  the  course 
of  the  stream  so  as  to  affect  other  riparian  proprietors  favorably, 
and  acquiesced  therein  for  a  sufficient  length  of  time,  he  cannot 
claim  the  right  to  change  the  flow  of  the  water  to  the  detriment  of 
such  other  riparian  owners;  for  such  acquiescence  on  his  part  is 
binding  like  a  public  dedication.20  After  high- water  channels  are 
artificially  opened,  and  after  they,  together  with  the  cuts  dug  con- 
necting them  with  the  main  stream,  have  been  used  by  the  parties 
opening  them  and  by  their  successors  in  interest,  and  such  use  is 
acquiesced  in  and  recognized  as  branches  of  the  main  creek  by 
others  on  the  main  stream  and  its  tributaries  and  branches  for  the 
period  prescribed  by  the  statute  of  limitations,  they  become  as  natu- 
ral channels  and  owners  of  lands  adjacent  thereto  are  in  law  entitled 
to  the  same  consideration  and  to  the  same  rights  as  are  those  on 
the  main  and  unquestioned  channel.21  - 

This  rule  rests  upon  a  quasi  dedication  of  the  artificial  condition 
to  the  public,  and  the  essence  of  it  is  the  growth  of  a  community 
dependent  upon  the  artificial  condition.  "Where  no  such  com- 
munity-interest has  been  created,  and  the  question  is  solely  between 
a  single  individual  and  the  original  creator  of  the  artificial  water- 
cpurse  or  condition,  the  rules  purely  of  prescription,  as  above  con- 
sidered, apply.  The  rule  of  dedication  to  the  public  just  set  forth 
is  inapplicable. 

(3d  ed.) 

§  61.  Qualification  in  Cases  of  Drainage  from  a  Foreign  Source 
Into  a  Natural  Stream. — The  foregoing  dealt  with  artificial  dis- 
charges of  water,  such  as  waste  water,  that  did  not  enter  any 
natural  stream.  Where  the  discharge  of  waste  from  a  ditch  or 
other  works  is  into  a  stream  perhaps  another  question  enters. 

Where  the  discharge  into  a  stream  consists  only  of  water  originally 
taken  from  that  stream,  there  can  be  no  question  but  that  the  lower 
stream  claimants  have  a  right  to  its  continuance,  being  simply  a 

Stanford  (1909),  1  Ch.  427;  Wood  v.  sec.  159);  Woodbury  v.  Short,  17 

Waud,  3  Ex.  775;  Gould  on  Waters,  Vt.  386,  44  Am.  Dec.  344;  Shep- 

sec.  159;  14  Ency.  of  Laws  of  Eng-  ardson  v.  Perkins,  58  N.  H.  354; 

land,  404.  Ford  v.  Whitlock,  27  Vt.  265;  Mathe- 

But  see  Ranney  v.  St.  Louis  etc.  Co.,  son  v.  Ward,  24  Wash.  407,  85  Am. 

137  Mo.  App.  537,  119  S.  W.  484;  St.  Rep.  955,  64  Pac.  520;  Hollett 

Greatrex  v.  Hayward  (1853),  8  Ex.  v.  Davis  (1909),  54  Wash.  326,  103 

291,  22  L.  J.  Ex.  137.  Pac.  423. 

20  Paige  v.  Rocky  Ford  etc.  Co.,  21  Hough  v.  Porter,  51  Or.  318,  95 

83  Cal.  84,  93,  21  Pac.  1102,  23  Pac.  732,  98  Pac.  1083,  102  Pac.  728. 
Pae.  875  (citing  Gould  on  Waters, 


§  61  Ch.  4.     NATURAL  RESOURCES.  (3d  ed.)     61 

surplus  of  the  natural  flow,  governed  by  the  ordinary  rules  of 
riparian  rights  (under  the  common  law)  or  of  successive  appro- 
priators  of  natural  streams  under  the  law  of  appropriation.22  In- 
d'eed,  under  the  common  law  of  riparian  rights,  such  return  to  the 
stream  is  obligatory.23 

But  there  is  much  difficulty  where  an  artificial  flow  is  discharged 
into  a  stream  from  a  foreign  source,  such  as  the  waste  from  a  ditch 
heading  in  a  different  stream,  or  from  a  seepage  tunnel,  or  from 
neighboring  irrigation,  which  would  not  have  formed  part  of  the 
stream  otherwise;  a  difficulty  arising  chiefly  under  the  law  of 
appropriation  of  streams,  which  system  does  not  in  all  cases  re- 
quire the  .water  to  be  returned  to  the  same  stream  from  which  taken, 
and  it  is  frequently  discharged  into  an  entirely  different  drainage. 
The  man  bringing  it  there  without  intent  to  recapture  has  aban- 
doned all  he  allows  to  enter,  and  cannot  reclaim  it  from  the 
stream;24  but  have  claimants  on  the  receiving  stream  any  perma- 
nent right  to  a  continuance  of  the  discharge  into  the  stream  ?  Is  it 
a  part  of  their  natural  source  of  supply  giving  vested  rights  in  a 
supply  from  a  foreign  source,  so  as  to  limit  the  dominion  of  the 
ditch-owner  over  it,  and  so  as  to  constitute  a  permanent  right  to 
have  the  discharge  into  the  stream  from  the  foreign  source  kept 
up?  For  example,  if  mine  water  has  long  drained  into  a  stream 
and  augmented  it,  must  the  mine-owner  forever  continue  draining 
his  mine  that  way,  when  it  is  clear,  as  above,  that  he  would  not  have 
to  continue  it  if  he  had  not  discharged  it  directly  into  the  stream  ?  25 

There  are  holdings  that  the  lower  stream  claimants  have  a  right 
to  the  continuance  of  the  artificial  discharge  into  the  stream  from 
a  foreign  source,  as  a  part  of  their  usufructuary  right  in  the  stream 
itself.1 

Nevertheless,  it  is  said:  "Water  artificially  added  to  a  natural 
stream  becomes  a  part  of  it,  and  can  be  afterward  appropriated 
only  to  the  same  extent  as  the  stream  itself.  [Referring  to  aban- 

22  Infra,    see.    302    et   seq.,   succes-  Tourtellot  v.  Philps,  4  Gray  (Mass.). 
eive  appropriators.  370,  Shaw,  C.  J. ;  Washburn  on  Ease- 

23  Infra,  sec.  755.  ments,  star    p.   274,  sec.   33;    Angell 

24  Supra,  sec.  37.  on  Watercourses,  7th  ed.,  sees.  93,  95, 

25  He    certainly    cannot    pollute   it.  p.  99. 

Humphreys  T.  Co.  v.  Frank,  46  Colo.  It  should  be  recalled  that  the  duty 

524,   105  Pac.  1093.  to    continue   the    artificial    discharge 

1  Eddy  v.  Simpson,  3  Cal.  249,  58  into   the   stream  is   established  where 

Am.    Dec.    408,    15    Morr.    Min.   Rep.  lapse  of  time  has  made  it  amount  in 

175;     Wood   v.    Waud,   3    Ex.     779;  effect  to  a  dedication  of  the  artificial 

Druley  v.  Adam  (1882),  102  111.  177;  flow  to  the  public   (supra,  sec.  60). 


62     (3d  ed.)  Pt.  I.    FIRST  PRINCIPLES.  §  62 

donment  of  the  water  so  long  as  it  is  so  discharged.]  But  the 
means  by  ivhich  it  is  added  may  presumably  be  stopped."2  And 
it  has  also  been  said  that,  as  to  artificial  increase  in  the  flow  of  a 
stream  the  lower  owner  has  no  interest  therein,  and  cannot,  as  a 
matter  of  right,  insist  upon  its  being  kept  up  or  upon  any  ad- 
vantages to  be  derived  therefrom.3  These  seem  to  say  that  where 
water  is  from  a  foreign  source  there  is  no  distinction  whether  it 
enters  a  natural  stream,  or  whether,  as  in  the  many  cases  previously 
cited,  it  is  discharged  as  waste  at  a  distance  from  streams ;  that  the 
party  receiving  it  cannot  force  its  continuance  in  this  case  any  more 
than  in  the  other. 

The  present  writer  expresses  no  opinion. 

(3d  ed.) 

§  62.    Qualification  by  Relation  Back  to  a  Natural  Stream.— 

Contracts  for  water  in  artificial  structures  must  primarily  be 
derivative  rights,  resting  for  their  continuance  upon  the  contract 
duty  of  the  owner  on  the  natural  resource  (the  natural  stream) 
to  keep  his  contract  and  furnish  the  supply  (and,  where  the  water  is 
devoted  to  public  use,  upon  the  public  right  to  compel  its  distribu- 
tion) .4  Primarily,  such  contracts  are  for  service;  5  so  far  as  they  are 
contracts  for  water  as  such,  they  would  be  contracts  for  personal 
property,  since  the  corpus  of  the  water  in  the  canal  or  other  artificial 
waterworks  is,  so  far  as  it  is  private  property,  personalty.6  Thus,  a 
contract  with  a  house-supply  company  in  a  city  sells  the  householder 
so  many  gallons  or  cubic  feet  of  liquid  measured  by  a  meter  and  is 
a  contract  of  sale  7  of  personal  property ; 8  it  does  not  profess  to 

2  Note    by    Justice    Holmes    in    3      law  of  watercourses;  nor  is  it  a  pri- 
Kent's  Commentaries,  14th  ed.,  p.  689.      vate  property  right. 

Accord,   Goddard   on   Easements,   7th  5  Infra,  sec.  1324. 

ed.,  1910,  p.  87.  °  Supra,  sec.  35;  infra,  sec.  537. 

3  Story,   J.,   in  Webb   v.    Portland  7  That   is,   so   far   as   it   is   a  sale. 
Mfg.  Co.,  3  Sum.  189,  Fed.  Gas.  No.  Primarily,  it  is  a  contract  of  service 
17,322.     That  a  mine-owner  may  stop  rather  than  sale.     Infra,  sec.  1324. 
mine  water  entering  a  stream  is  laid  8  People     ex     rel.     Heyneman     v. 
down  as  the  law  of  Scotland.     Fergu-  Blake,   19  Cal.  595,  Field,  J.,  quoted 
son  on  the  Law  of  Water  in  Scotland,  supra,  sec.  35 ;   Spring  Valley  W.  W. 
p.  277  et  seq.  v.   Schottler,    110   U.    S.   347,   4   Sup. 

4  Infra,    sec.  537  et  seq.,  contracts.  Ct.   Eep.   48,   28   L.  Ed.   173,    quoted 
Where  the  owner  of  the  natural  sup-  supra,  sec.   33;    Hesperia   etc.   Co.   v. 
ply  is  distributing  water  to  the  public,  Gardner,   4   Cal.   App.    357,   88     Pae. 
a  noncontract  duty  rests  upon  him  un-  286.     Compare  Carothers  v.  Phil.  Co., 
der   the   rule    of    compulsory    service.  118  Pa.  468,  12  Atl.  314;  Ohio  Oil  Co. 
(Infra,  sec.  1280.)     But  that  has  no  v.   Indiana,    177   U.    S.    290,   20   Sup. 
bearing  here,  as  it  arises  outside  the  Ct.  Eep.  576,  44  L.  Ed.  729,  20  Morr. 


§  63  Ch.  4.     NATURAL  EESOUECES.  (3d  ed.)     63 

grant  a  perpetual  flow  from  a  natural  stream  or  to  give  the  house- 
holder a  title  in  the  natural  source  of  supply. 

But  irrigation  or  water-power  contracts  to  receive  water  from 
another's  canal  are,  in  the  West,  usually  regarded  as  conferring 
a  title  to  an  interest  in  the  natural  source  of  supply  from  which 
the  canal  heads,  and  in  the  transmission  canal ;  that  is,  conferring 
upon  the  user  a  part  interest  in  the  real  estate  upon  which  the 
supply  is  dependent.  The  users  receiving  water  from  a  dis- 
tributing system  at  points  far  away  from  streams,  and  hence  not 
directly  claiming  upon  the  natural  resource,  are  nevertheless  usually 
regarded  as  having,  through  the  intermediate  agency  of  canals  or 
ditches  of  others,  rights  in  the  usufruct  of  the  natural  stream  on 
a  par  with  those  directly  diverting  from  the  natural  flow ;  having 
freehold  rights  in  real  property — in  the  canal,  and  in  the  flow  and 
use  of  the  natural  stream  from  which  the  artificial  flow  (however 
distant)  comes.  The  water  user,  although  contracting  for  supply 
from  an  artificial  flow  in  a  distributing  canal,  is  usually  regarded 
as  becoming  a  part  owner  of  the  distributing  system. 

This  is  an  important  qualification  of  the  rule  that  a  claimant 
upon  an  artificial  flow  is  subordinate  in  ownership  to  the  owner 
upon  the  natural  resource.  By  this  qualification  the  former  is  not 
merely  the  recipient  by  contract  of  an  artificial  flow  fed  by  a 
natural  supply  the  ownership  of  which  is  in  another,  but  becomes 
himself  a  part  owner  of  the  natural  source  of  supply,  subordinate 
to  no  one  in  ownership,  it  seems.  This  is  considered  at  much 
length  hereafter  in  the  part  devoted  to  the  "Distribution  of 
water."9 

(3d  ed.) 

§  63.  "First  Principles"  Deduced. — The  law  of  watercourses 
is  one  of  natural  streams  as  natural  resources,  or  natural  water 
supplies.  From  the  foregoing  chapters  the  following  "first  prin- 
ciples" of  the  law  of  watercourses  may  be  deduced: 

Min.   Rep.   466 ;    citing  State   ex  rel.  court  has  confined  it  to  private  con- 

Corwin  v.   Indiana  etc.  Co.,  120   Ind.  tracts,  inapplicable  to  rights  of  con- 

575,  22  N.  E.   778,  6  L.  R.  A.  579;  Burners    from    public    sen-ice    irriga- 

People's  Gas   Co.  v.   Tyner,   131   Ind.  tion    companies;    holding    that    such 

277,  31  Am.   St.  Rep.  433,  31  N.  E.  consumers  get  no  actual  ownership  in 

59,   16  L.  R.  A.   443,   17   Morr.   Min.  realty,  no  "water-right"  as  a  perma- 

Rep.  481.  nent  usufruct  or  interest  in  a  natural 

9  Infra,     sees.     1324,     1338.     The  stream,  but   only  a   right  of  service; 

view  .just  stated  is  the  one  generally  thereby    placing    them   on   the    same 

prevailing    in    the    West.     But    since  footing  as    consumers   in   cities.     See 

the  above  was  written  the  California  infra,  sees.  1245,   1260,  lb'25  et  seq. 


64     (3d  ed.)  Pt.  I.     FIEST  PKINCIPLES.  §  63 

a.  The  running  water  of  natural  streams  is,  as  a  corpus,  the  prop- 
erty of  no  one  (variously  expressed  as  being  in  the  "negative 
community,"  "common,"  "publici  juris,"  "the  property  of  the 
public,"  or  "the  property  of  the  State  in  trust  for  the  people"), 
and  is  a  wandering,  changing  thing  without  an  owner,  like  the  fish 
swimming  in  it  or  like  wild  animals,  the  air  in  the  atmosphere,  and 
the  "negative  community"  in  general. 

6.  The  substantial  property  right  recognized  by  the  law  is  the 
usufruct  of  the  stream — the  right  to  the  flow  and  use  of  the  natural 
resource,  or  "water-right"  in  the  natural  supply,  and  this  is  real 
property,  however  obtained.  A  right  of  access  to  the  natural 
resource  is  essential  to  the  enjoyment  of  this  usufruct. 

c.  Any  specific  portion  of  the  water  severed  from  the  stream  and 
reduced  to  possession  (as  in  a  barrel,  tank,  ditch,  reservoir,  or 
artificial  waterworks  or  structures  generally)  is  private  property 
as  a  corpus  while  so  held  in  possession;  but  the  usufruct  in  the 
natural  resource,  and  not  the  corpus  of  a  specific  portion  of  water, 
is  of  most  importance ;  and  when  the  portion  that  has  been  reduced 
to  possession  escapes  or  is  abandoned,  it  re-enters  the  "negative 
community,"  and  its  former  owner  may  not  recapture  it  unless 
he  discharged  it  from  his  possession  with  that  intent. 

And  the  following  corollary: 

Upon  artificial  resources  or  flows,  or  waste  water,  priority  gov- 
erns between  rival  claimants  among  themselves,  but  they  are  all, 
as  respects  continuance  of  supply,  subordinate  to  the  owner  of 
the  natural  supply,  with  the  following  exceptions:  (1)  The  owner 
of  the  natural  resource  may  become  bound  to  the  waste  claimants 
or  artificial  flow  claimants  by  dedication  (where  a  community  has 
become  dependent  thereon),  or  by  the  rule  of  compulsory  service 
where  the  supply  is  devoted  to  public  use,  or  by  grant  or  condemna- 
tion (but  not  by  prescription  or  estoppel,  without  special  facts  and 
circumstances  beyond  receipt  by  the  latter  of  the  benefit  of  the 
waste  or  artificial  flow)  ;  (2)  Under  the  usual  Western  law  of  dis- 
tribution of  water  for  irrigation,  consumers  from  ditches,  canals, 
and  similar  works  are  (in  addition  to  the  public  right  to  share  in  a 
public  use  or  service)  accorded  rights  of  part  ownership  in  the 
natural  resources  involved,  by  relation  back  to  the  natural  stream 
through  the  intermediate  agency  of  the  distributing  canal. 

§§  64-65.     (Blank  numbers.) 


PAKT  II. 

CALIFORNIA  AND  COLOEADO  DOCTEINE8. 

CHAPTER  5. 

HISTORICAL  REVIEW.— TO  THE  ACT  OF  1866. 

A..     ORIGIN  OF  THE  DOCTRINE  OF  PRIOR  APPROPRIATION  IN  THE 
CUSTOMS  OF  PIONEER  MINERS. 

5  66.  Acquisition  of  the  Western  public  domain. 

§  67.  California  before  the  arrival  of  pioneers. 

§  68.  Mexican  law. 

§  69.  Discovery  of  gold  in  California  in  January,  1848. 

§  70.  Immigration  upon  the  discovery  of  gold. 

§  71.  Customs  of  the  pioneer  miners. 

§  72.  The  customs  approved  by  the  legislature. 

5  73.  Water  customs  as  part  of  the  mining  customs. 

B.  DEVELOPMENT  OF  THE  CUSTOMS  INTO  LOCAL  LAW. 

§  74.  The  questions  presented  to  the  courts. 

§  75.  The  customs  and  the  common  law. 

f  76.  The  customs  and  the  court. 

§  77.  Irwin  v.  Phillips. 

§  78.  Prior  rights  by  appropriation  upheld  in  court. 

§  79.  Endeavors  to  follow  and  not  disregard  the  common  law. 

§  80.  The  common  law  departed  from. 

$  81.  The  question  of  common  law  subordinated. 

C.     THE  QUESTION  OF  FEDERAL  PUBLIC  LAND  LAW. 

§  82.  Who  was  the  ultimate  proprietor? 

§  83.  The  pioneers  as  trespassers  against  the  United  States. 

§  84.  Spread  of  the  Possessory  System. 

§  85.  Possessory  System  not  confined  to  mining. 

§  86.  Precarious  status  of  possessory  rights  on  the  approach  of  the  Civil  War. 

§  87.  Revocation  of  possessory  rights  by  Federal  patent. 

D.     THE  THEORY  OF  FREE  DEVELOPMENT  OF  THE  PUBLIC  LANDS 

UNDER  LOCAL  LAW. 

§  88.    Unpopularity  of  the  "trespasser"  basis  of  the  Possessory  System. 
§  89.     The  theory  of  a  grant  with  the  dignity  of  a  fee. 
Water  Rights — 5  (65) 


66     (3d  ed.)     Pt.  II.     CALIFORNIA  -COLORADO  DOCTRINES.  §  66 

§  90.     Same. 

§  91.     "Excepting  the  government." 

E.     THE  ACT  OF  1866. 
§  92.     Introductory. 
§  93.     Congress  and  the  public  domain. 
§  94.     The  act  of  1866. 

§  95.     The  act  explained  by  Judge  Field  and  other  authorities. 
§  96.     An  enactment  of  the  policy  that  the  waters  on  public  lands  were  open 

to  free  development  under  local  law. 
§  97.     Operates  as  a  grant. 
§  98.     Only  declaratory  of  the  California  law. 
§  99.     Conclusion. 
§§  100-107.     (Blank  numbers.) 

A.     ORIGIN  OF  THE  DOCTRINE  OF  PRIOR  APPROPRIATION  IN  THE 

CUSTOMS  OF  THE  PIONEER  MINERS. 
(3d  ed.) 

§  66.    Acquisition  of  the  Western  Public  Domain. — The  law  of 

prior  appropriation  of  water  originated  among  the  miners  of 
California  in  the  earliest  days  of  that  State,  whence  it  has  been 
copied  in  all  the  Western  States  and  Territories,  viz. :  Alaska, 
Arizona,  California,  Colorado,  Idaho,  Kansas,  Montana,  Nebraska, 
Nevada,  New  Mexico,  North  Dakota,  Oklahoma,  Oregon,  South 
Dakota,  Texas,  Utah,  Washington,  and  Wyoming. 

By  1846  the  title  of  the  United  States  was  established  to  the 
country  covering  Oregon,  Washington,  Idaho,  and  portions  of 
Montana  and  Wyoming.1  On  July  4,  1848,  the  Treaty  of  Guada- 
lupe  Hidalgo2  with  Mexico  was  proclaimed,  ceding  to  the  United 
States  the  region  now  covered  by  California,  Nevada,  Utah,  and 
part  of  Arizona  and  New  Mexico.  In  1853  the  Gadsden  Purchase 
embraced  part  of  Arizona  and  New  Mexico.3  Consequently,  at  the 
time  this  history  opens,  practically  all  the  region  west  of  the 

1  "There  has  been  some  discussion  now  issued  by  that   office  states  that 

as  to  the  origin  of  our  title  to  what  the    title    was     established   in     1846. 

was    known    as    the    Oregon    country,  The  exact  basis  of  our  claim  has  ap- 

comprising     the     States     of     Oregon,  parently     never     been   authoritatively 

Washington  and  Idaho,  and  the  por-  decided."     Morris  Bien,  in  192  North 

tions  of  Montana  and  Wyoming  west  American  Review,  388,  for  September, 

of   the  Rocky  Mountains.     The   ques-  1910. 

tion   was   whether   our   title   was     de-  The  General  Land  Office  became  a 

rived  from  the  Louisiana  Purchase  or  part   of   the   Department   of   Interior 

directly   by   discovery   and   prior   pos-  March  3,  1849.     Ibid. 

session.     As    the   result    of    a    discus-  2  9  Stats,  at  Large,  928. 

sion  by   the   General   Land   Office    in  8  Lindley  on  Mines,  sec.  40. 
1898,  the  map  of  the  United  States 


§  67  Ch.  5.     HISTORICAL— TO  THE  ACT  OF  1866.     (3d  ed.)     67 

Mississippi  Valley  was  a  vast,  uninhabited,  newly  acquired  Federal 
property. 

(3d  ed.) 

§  67.    California  Before  the  Arrival  of  Pioneers. — California  had 

been,  at  the  beginning  of  the  century,  a  Spanish  missionary  terri- 
tory. That  part  to  which  the  pioneers  came  was  known  to  the  Mexi- 
cans as  Alta  or  Upper  California,  and  was  regarded  as  only  a  set 
of  colonies  extending  northward  from  the  original  settlements  in 
Baja  or  Lower  California,  the  desert  peninsula,  which  is  still  Mexi- 
can territory.4  The  colonies  consisted  of  here  and  there  small  set- 
tlements about  the  missions  of  Franciscan  monks  who  had  wandered 
northward  from  the  original  Jesuit  and  Dominican  Missions  of 
Baja  California. 

Under  the  Spanish  rule  that  preceded  the  Mexican  Revolution, 
these  colonies  were  on  the  outskirts  of  civilization,  needing  but  few 
laws,  and  little  regard  being  paid  to  the  strict  letter  of  even  those. 
With  the  revolution  which  severed  Mexico  from  the  Spanish  Crown 
came  disorder  and  disorganization.  The  Missions  were  broken 
up,  the  presidios  neglected,  and  no  new  system  was  adopted  and 
enforced  in  place  of  the  one  which  had  fallen  into  disuse.  Land 
had  never  been,  previously  to  the  acquisition  of  the  country  by  the 
Americans,  of  much  value.  The  wealth  of  the  colonists  consisted 
principally  in  their  cattle  and  horses,  which  were  sold  for  a  trifling 
sum.  During  the  disorders  which  characterized  the  Mexican 
regime,  land  can  be  said  to  have  had  scarcely  any  value — at  all 
events,  not  a  value  worth  the  trouble  and  expense  of  procuring 
a  perfect  title  under  the  colonization  laws  of  Mexico  and  Spain. 
No  mail  facilities  were  enjoyed — long  journeys  had  to  be  made 
to  the  capital  of  the  province,  in  the  midst  of  civil  disorders  and 
revolution,  in  order  to  procure  a  perfect  title.  Men  coujd  not 
always,  perhaps  but  seldom,  be  found,  who  were  capable  of  making 
the  necessary  surveys.  This  condition  of  things  led,  in  some  cases 
without  taking  any  steps  to  obtain  a  title,  in  others  after  having 
taken  only  the  incipient  proceedings,  to  the  practice  of  taking  pos- 
session, or  at  least  of  claiming  large  tracts  of  land  which  had  not 
been  surveyed,  and  the  boundaries  of  which  were  undefined  and 
even  unknown.  This  system  continued  until  the  conquest  of  the 

4  See  the  volume  in  the  American  Commonwealth  Series,  upon  "California," 
by  Josiah  Boyce. 


68     (3d  ed.)     Pt.  II.     CALIFORNIA  -  COLORADO  DOCTRINES.  §  68 

country — until  the  discovery  of  gold — until  the  Americans  thronged 
into  Northern  California,  a  portion  of  the  country  which  could 
be  said  previously  to  have  contained  scarcely  any  population  ex- 
cept Indians.5 

(3d  ed.) 

§  68.  Mexican  Law. — The  region  before  the  conquest,  was  un- 
settled and  a  part  of  the  Mexican  public  domain,  just  as,  after  the 
cession,  it  became  part  of  the  public  domain  of  the  United  States. 
The  foundation  of  the  Mexican  civil  law  was,  as  at  common  law, 
the  law  of  riparian  rights;  but  upon  the  public  domain,  where 
there  were  no  riparian  proprietors,  the  Mexican  Government  held, 
as  it  to  this  day  holds,  a  large  power  of  making  grants  and  con- 
cessions. Little  had  been  done  under  this  power,  however — the 
writer  knows  of  no  California  water-rights  traced  back  to  any 
special  private  grant  or  concession  of  waters  from  the  Mexican 
Government.  There  had  been,  in  fact,  no  law  in  force  to  inter- 
fere with  the  California  miners  helping  themselves  to  the  waters 
they  needed ;  for  the  region,  as  a  whole,  was  uninhabited. 

A  minor  feature  of  the  public  land  system  of  Mexico  has,  how- 
ever, in  the  case  of  the  city  of  Los  Angeles,  come  down  to  the 
present  day.  Under  the  Mexican  law,  agricultural  settlements 
or  "pueblos"  located  on  public  land  had  ipso  facto  a  concession 
of  the  waters  on  the  surrounding  public  lands,  so  far  as  necessary 
for  the  general  supply  of  the  settlement.  This  right  in  the  pueblo 
was  superior  to  that  of  any  riparian  proprietors ;  because  any  ripar- 
ian proprietors,  perforce,  acquired  private  title  to  public  riparian 
land  subsequent  to  the  establishment  of  the  pueblo,  since  the  pueblos 

5  Preface  by  Judge  Bennett  to  the  present  day  the  peninsula  is  overrun 

first  volume  of  California  Reports.  with  a  heavy  growth  of    cactus,  and 

"Previous  to  the  occupation  of  the  probably  always  has  been.  The 
part  of  the  country  known  as  the  Gold  stories  of  the  old  Mexican  and  Span- 
Region,  by  the  Americans,  no  at-  ish  irrigation  here  are  much  exag- 
tempts  were  made  to  settle  there,  as  gerated. 

it   was    infested    by    wild    Indians."  Speaking  of  California  at  the  time, 

Yale    on    Mining    Claims  and  Water  it  was   said:   "The   country  was   very 

Rights,  p.  23.  sparsely  populated  indeed,  except  by 

Concerning  the  ancient  Mexican  a  few  families  at  the  various  Mis- 
colonization  in  Baja  California,  the  sions."  Memoirs  of  General  W.  T. 
writer  of  this  book,  on  a  trip  across  Sherman,  p.  28.  Speaking  of  Baja 
the  middle  of  the  peninsula  a  few  California:  "There  were  few  or  no 
years  ago,  learned  of  evidences  of  ir-  people  in  Lower  California,  which  is 
rigation  on  a  very  small  scale  in  the  a  miserable,  wretched,  dried-up  penin- 
vicinity  of  the  Missions,  but  at  the  eula."  Ibid,  p.  38. 


§68 


Ch.  5.     HISTORICAL— TO  THE  ACT  OF  1866.     (3d  ed.)     69 


colonized  uninhabited  regions.6  The  pueblo  right  prevailed  because 
it  was  acquired  on  public  land  before  there  were  any  riparian 
proprietors.  The  city  of  Los  Angeles  has,  after  much  litigation, 
been  held  to  succeed  to  the  rights  of  the  pueblo,  from  which  it  grew, 
to  a  public  water  supply  from  the  Los  Angeles  River  which  runs 
through  it.  The  extent  of  the  city's  right  of  use  under  this  claim 
is  now  settled  to  include  the  entire  flow  of  the  river,  which  may  be 
used  in  parts  of  the  city  either  within  or  outside  the  original  pueblo 
limits.7 

This,   however,   was  distinctly  public  land  law;   for  the  basic 
Mexican  law  was  the  law  of  riparian  rights  as  at  common  law. 


«  Lux  v.  Haggin,  69  Cal.  255,  10 
Pac.  674;  Vernon  Irr.  .Co.  v.  Los 
Angeles,  106  Cal.  237,  39  Pac.  762; 
Los  Angeles  v.  Los  Angeles  etc.  Co., 
152  Cal.  645,  93  Pac.  869,  1135.  Af- 
firmed in  217  U.  S.  217,  30  Sup.  Ct. 
452,  54  L.  Ed.  736. 

1  City  of  Los  Angeles  v.  Hunter; 
Same  v.  Buffington  (1909),  156  Cal. 
603,  105  Pac.  755. 

This  pueblo  right  is  set  forth  in 
Lux  v.  Haggin:  "By  analogy,  and 
in  conformity  with  the  principles  of 
that  decision  [Hart  v.  Burnett,  15 
Cal.  530],  we  hold  the  pueblos  had  a 
species  of  property  in  the  flowing 
•waters  within  their  limits,  or  a  cer- 
tain right  or  title  in  their  use,  in 
trust,  to  be  distributed  to  the  common 
lands,  and  the  lands  originally  set 
apart  to  the  settlers,  or  subsequently 
granted  by  the  municipal  authorities. 
....  Each  pueblo  was  quasi  a  public 
corporation.  By  the  scheme  of  the 
Mexican  law  it  was  treated  as  an  en- 
tity or  person,  having  a  right  as  such, 
and,  by  reason  of  its  title  to  the  four 
leagues  of  land,  to  the  use  of  the 
waters  of  the  river  on  which  it  was 
situated,  while,  as  a  political  body,  it 
was  vested  with  power,  by  ordinance, 
to  provide  for  a  distribution  of  the 
waters  to  those  for  whose  benefit  the 

right  and  power  were  conferred 

From  the  foregoing  it  appears  that 
the  riparian  proprietor  could  not  ap- 
propriate water  in  such  manner  as 
should  interfere  with  the  common  use 
or  destiny  which  a  pueblo  on  the 
stream  should  have  given  to  the 
waters;  and,  semble,  that  the  pueblos 
had  a  preference  or  prior  right  to  con- 


sume the  waters,  even  as  against  an 
upper  riparian  proprietor."  Lux  v. 
Haggin,  69  Cal.  255,  10  Pac.  674. 

By  the  act  of  1850,  page  155,  it 
was  provided  that  the  city  of  Los 
Angeles  succeeded  "to  all  the  rights, 
claims  and  powers  of  the  Pueblo  de 
Los  Angeles  in  regard  to  property." 

The  pueblo  right  of  Los  Angeles 
was  considered  in  another  case,  Ver- 
non Irr.  Co.  v.  Los  Angeles,  106  Cal. 
237,  39  Pac.  762,  where  it  was  said 
that  the  Mexican  law  regarded  the 
waters  as  public  property  and  held 
for  the  benefit  of  the  inhabitants  and 
by  the  pueblo  (where  there  was  one) 
to  induce  settlement;  also  in  Los 
Angeles  v.  Pomeroy,  124  Cal.  597,  57 
Pac.  585,  to  the  same  effect,  and 
further  holding  that  the  pueblo  right 
of  Los  Angeles  grows  with  the 
growth  of  the  city.  Los  Angeles  v. 
Pomeroy  went  to  supreme  court  of 
the  United  States  under  the  name  o.'r 
Hooker  v.  Los  Angeles,  188  U.  S. 
314,  23  Sup.  Ct.  Rep.  395,  63  L.  R. 
A.  471,  47  L.  Ed.  487,  where  the 
pueblo  right  was  upheld  against 
riparian  proprietors,  even  those  claim- 
ing land  under  Mexican  grants.  This 
was  affirmed  in  Devine  v.  Los  Angeles 
202  U.  S.  313,  26  Sup.  Ct.  Rep.  652, 
50  L.  Ed.  1046,  on  the  ground  that 
the  controversy  involved  no  federal 
question.  Likewise  in  Los  Angeles 
etc.  Co.  v.  Los  Angeles,  217  U.  S.  217, 
30  Sup.  Ct.  Rep.  452,  54  L.  Ed.  736 
(1910),  affirming  S.  C.,  152  Cal.  645, 
93  Pac.  869,  holding  further  that  the 
rights  of  pueblos  against  riparian 
owners  is  solely  a  question  of  local  law. 
In  Los  Angeles  v.  Hunter,  Same  v. 


70     (3ded.)     Pt.  II.     CALIFORNIA -.COLORADO  DOCTRINES.  §69 

We  have  considered  this  at  length  in  later  chapters.8  We  refer  to 
it  here  as  showing  that,  because  substantially  the  whole  region  was 
public  domain  of  Mexico,  there  was  no  occasion  even  under  Mexican 
law  to  apply  the  law  of  riparian  rights,  there  being  no  riparian 
proprietors;  and,  there  being  no  private  riparian  lands  to  which 
to  restrict  the  use  of  water,  no  such  restriction  prevailed.  What 
law  had  been  enforced  at  the  time  the  pioneers  settled  in  Cali- 
fornia centered  chiefly  about  the  pueblos,  of  which  none  existed 
in  the  mining  regions ;  and  hence  if  continued  in  force,  would  have 
put  little  impediment  in  the  way  of  the  miners  helping  themselves 
to  the  waters  they  needed.  Whatever  questions  could  have  arisen 
under  Mexican  law  were  public  land  questions,  just  as  they  became 
when,  in  the  following  years,  they  arose  under  American  sover- 
eignty.9 

(3d  ed.) 

§  69.    Discovery  of   Gold  in   California  in   January,  1848. — 

There  have  been  gold  excitements  since,  but  none  as  great  nor  as 
permanent  in  importance  as  that  following  the  discovery  of  gold 
in  California.  Only  very  old-timers,  schoolboys  then,  are  left  to 
remember  it.  A  military  expedition  had  landed  at  Monterey, 
California,  not  many  months  before  and  was  holding  possession 

Buffington  (1909),  156  Cal.  603,  105  Rep.  652,  50  L.  Ed.  1046;  Los  Angeles 
Pac.  755,  the  matter  was  said  to  be  •  v.  Hunter,  Same  v.  Buffington  (1909), 

fully  at  rest,  that  the  city's  right  ex-  156    Cal.     603,    105    Pac.     755.     See 

tended  to  the  whole  flow"  of  the  Los  Shaw,  J.,  concurring  in  Miller  v.  Bay 

Angeles   River,   for  use  either  within  Cities  W.  Co.,  157  Cal.  256,  107  Pac. 

or  without  the  original  pueblo  limits,  115.     See,    also,    Anaheim    W.    Co.   v. 

and  included  the  underground  waters  Fuller,  150  Cal.  327,  88  Pac.  978,  11 

of  the  San  Fernando  Valley,  in  which  L.  R.  A.,  N.  S.,  1062;  Fellows  v.  Los 

the  river  has  its  source  as  in  a  quasi  Angeles,  151  Cal.  52,  90  Pac.  137. 
subterranean  lake.  8  Infra,  sees.  685  et  seq.,  1026. 

The  following  is  a  list  of  the  cases  9  Regarding  Mexican  law,  see  Lux 

involving     the     Los     Angeles     pueblo  v.  Haggin,  69  Cal.  255,  4  Pac.  919,  10 

right :    Feliz  v.  Los  Angeles,  58   Cal.  Pac.  674 ;  Boquillas  etc.  Co.  v.  Curtis, 

73;  Elms  v.  Los  Angeles,  58  Cal.  80;  11  Ariz.  128,  89  Pac.  504,  S.  C.,  213 

Lux  v.   Haggin,   69  Cal.   255,  4   Pac.  U.   S.  339,   29   Sup.  Ct.  Rep.  493,  53 

919,  10  Pac.  674;  Vernon  Irr.  Co.  v.  L.  Ed.  822;  Gutierres  v.  Albuquerque 

Los   Angeles,    106   Cal.    237,   39    Pac.  etc.  Co.,   188  U.   S.  545,  23   Sup.   Ct, 

762;    Los    Angeles    v.    Pomeroy,    124  Rep.  338,  47  L.  Ed.  588;  De  Boca  v. 

Cal.   597,   57   Pac.   585;    Los   Angeles  Pueblo,  10  N.  M.  38,  60  Pac.  73.     The 

v.  Los  Angeles  etc.  Co.,  152  Cal.  645,  quotations   from  these  cases  given   in 

93    Pac.   869,   affirmed   in   217   U.    S.  the    preceding    editions    of    this    book 

217,  30  Sup.  Ct.  Rep.  452,  54  L.  Ed.  are  here  omitted  because  of  the  fuller 

736 ;  Hooker  v.  Los  Angeles,  188  U.  S.  presentation  of  the  civil  law  hereafter 

314,  23  Sup.  Ct.  Rep.  395,  47  L.  Ed.  given.     Infra,  sees.  685  and  1025  at 

487,  63  L.  R.  A.  471;   Devine  v.  Los  seq. 
Angeles,  202  U.  S.  313,  26  Sup.  Ct. 


§  70  Ch.  5.     HISTORICAL— TO  THE  ACT  OF  1866.     (3d  ed.)     71 

for  the  United  States.  An  American,  John  A.  Sutter,  made  his 
way  inland  and  was  building  a  sawmill  on  the  American  River 
where  it  joins  the  Sacramento,  when  his  partner,  James  W.  Mar- 
shall, found  gold  in  the  scourings  of  the  mill-race.  Sutter  sent 
specimens  to  Monterey  to  get  a  pre-emption  title  to  the  land  from 
the  United  States  military  commander,  as  the  only  representative 
of  the  American  government  in  the  new  region.  Title 'was  denied 
from  lack  of  authority.  The  specimens  were  shown  to  the  com- 
mander's adjutant,  W.  T.  Sherman,  then  a  lieutenant,  who  con- 
firmed the  character  of  the  mineral.  The  discovery  was  made  in 
January,  1848,  and  almost  contemporaneously  the  Mexican  War 
came  to  a  close  and  the  region  was  ceded  by  Mexico  to  the  United 
States  by  the  treaty  of  Guadalupe  Hidalgo,  proclaimed  July  4, 
1848.10 

(3d  ed.) 

§  70.  Immigration  upon  the  Discovery  of  Gold. — General  Sher- 
man says  in  his  writings  that  he  thought  little  of  it  at  the  time, 
but  when  many  years  had  passed  he  wrote,  ' '  That  gold  was  the  first 
discovered  in  the  Sierra  Nevadas,  which  soon  revolutionized  the 
whole  country  and  actually  moved  the  whole  civilized  world." 

As  the  spring  and  summer  of  1848  advanced,  reports  came  faster 
and  faster  from  gutter's  sawmill  of  fabulous  discoveries,  and 
spread  throughout  the  land.  Everybody  was  talking  of  gold, 
until  it  assumed  the  character  of  a  fever.  Soldiers  began  to  de- 
sert; citizens  were  fitting  out  trains  of  wagons  and  pack-mules 
to  go  to  the  mines  where  men  earned  fifty,  five  hundred,  and  thou- 
sands of  dollars  per  day ;  and  for  a  time  it  seemed  as  though  some- 
body would  reach  solid  gold.  Some  of  this  gold  began  to  come  to 
Yerba  Buena  in  trade,  and  to  disturb  the  value  of  merchandise, 
particularly  of  mules,  horses,  tin  pans,  and  articles  used  in  mining. 
Before  another  year  had  passed,  the  stream  of  gold-seekers  at- 
tracted by  the  discovery  filled  the  mountains  with  a  hundred  thou- 
sand people,  and  still  increased.  Crowded  steamers  began  to 
round  the  Horn,"  and  later  brought  people  who  crossed  the 
Isthmus  of  Panama.  Emigrant  trains  of  families  who  could  not 
pay  steamer  passage  crossed  the  plains  in  wagons,  braving  starva- 

10  9  Stats,  at  Large,  928.  «  The   first   arrived    February   28, 

1849. 


72     (3d  ed.)     Pt.  EL     CALIFORNIA  -  COLORADO  DOCTRINES.  §  71 

tion,  Indians,  and  the  elements.     The  rush  to  Cripple  Creek,  Klon- 
dike, Tonopah  and  Goldfield  all  together  did  not  approach  it. 

There  were,  during  the  first  year,  no  government,  no  law,  nor 
any  private  landowners.  The  region  was  a  vacant  wilderness. 
The  American  military  officers  on  February  12,  1848,  declared  the 
Mexican  law  abrogated;  but  otherwise  the  small  military  force 
was  inadequate  and  inactive.  Colonel  Mason,  in  command,  had 
simply  said,  in  general  conversation,  "This  is  public  land  and  the 
gold  is  the  property  of  the  United  States;  all  of  you  here  are 
trespassers,  but  as  the  Government  is  benefited  by  your  getting 
out  the  gold,  I  do  not  intend  to  interfere." 

(3d  ed.) 

§  71.  The  Customs  of  the  Pioneer  Miners. — The  miners  ac- 
cordingly, from  lack  of  other  means  of  keeping  order,  held  mass 
meetings  in  each  locality  and  adopted  district  organizations  by 
which  they  agreed  to  be  governed.  The  regulations  were  numer- 
ous, as  each  mining  district  had  its  own  laws,  but  frequently  one 
set  of  laws  was  adopted  for  the  whole  county.12  The  essentials 
of  these  regulations  were  everywhere  similar.  Mass  meetings 
were  held,  officers  appointed,  including  sheriffs  and  recorders, 
and  names  adopted,  "sensible,  poetical,  and  ridiculous,  the  last 
predominating."  Localities  had  such  names  as  Henry's  Dig- 
gings, Slag  Gulch,  Indian  Diggings,  Fiddle  Town  and  Whisky 
Hill,  the  last  supposed  to  be  at  or  near  the  place  pictured  by 
Bret  Harte  in  "The  Luck  of  Roaring  Camp";  yet  as  a  whole, 
the  population  was  of  young  men  of  good  character,  just  enter- 
ing the  world  to  seek  fortune. 

The  rules  covered  a  wide  field  of  law,  but  were  devoted  spe- 
cially to  property  rights.  Their  fundamental  principle  held  the 
natural  resources  free  to  all,  the  first  possessor  being  protected; 
the  rule  "first  come  first  served"  was  applied  by  common  ac- 
ceptance. The  right  to  mine,  first  of  all  in  importance,  was  pro- 
tected in  the  first  possessor  of  the  mining  ground,  and  that  has 
grown  into  the  system  of  mining  law  which  we  have  to-day.  All 

12  There  were  about  five  hundred  each  in  Arizona,  Idaho  and  Oregon, 
districts  in  California  about  1860,  following  in  the  steps  of  California, 
two  hundred  in  Nevada,  one  hundred 


§  72  Ch.  5.     HISTORICAL— TO  THE  ACT  OF  1866.     (3d  ed.)     73 

rights  were  declared  upon  the  basis  of  priority  of  discovery,  loca- 
tion and  appropriation.13 

These  customs,  it  should  be  repeated,  grew  up  among  the  miners 
upon  the  public  domain,  and  were  not  rules  that  the  lawyers 
originated  among  themselves.  Lawyers  in  large  numbers,  where  the 
camps  would  admit  them,  came,  as  they  still  come,  to  new  min- 
ing camps,  and  some  of  the  most  prominent  names  in  the  history 
of  the  State  are  of  lawyers  who  started  practice  in  the  pioneer 
mining  camps.  But  the  rough-and-ready  spirit  of  mining  camps 
carries  them  along  with  it.  The  lack  of  facilities  for  reference 
and  study  forces  them  to  depend  on  their  own  argument  adapted 
to  their  surroundings  more  than  upon  precedent. 

(3d  ed.) 

§  72.  The  Customs  Approved  by  the  Legislature. — Free  min- 
ing, free  soil  and  free  water,  under  self-government,  thus  sprang 
up  over  night,  in  which  Congress  had  no  part,  although  the  region 
was  now  American  soil,  and  Federal  property.  "I  apprehended, 
if  these  territories  were  left  without  a  government  for  another 
year,  and  especially  California,  they  might  be  lost  to  the  Union," 
said  President  Polk  in  December,  1848.  He  added  that  "in  the 
course  of  the  next  year  a  large  population  would  be  attracted 
to  California  by  its  mineral  wealth  and  other  advantages;  that 
among  the  emigrants  would  be  men  of  enterprise  and  adventure, 
men  of  talents  and  capital;  and  that  finding  themselves  without 
a  government  or  the  protection  of  law,  they  would  probably  or- 
ganize an  independent  government,  calling  it  California  or  Pacific 
Republic,  and  might  endeavor  to  induce  Oregon  to  join  them."14 

The  situation  was  met  by  the  hurried  admission  of  the  State 
into  the  Union.  Under  the  lead  of  the  military  officers,  a  loyal 
State  organization  was  effected  and  California  was  admitted  in 
September,  1850,  without  having  had  preliminary  status  or  gov- 
ernmental organization  as  a  territory.  The  Act  of  Admission 
contained  the  usual  clause  that  the  State  shall  never  interfere 
with  the  primary  disposal  of  the  public  domain,  but  the  new  State 
lost  no  time  in  giving  its  full  approval  to  this  universal  occupa- 

13  Concerning  the  customs  of  miners  Eights,    cc.    VII,    VIII;     Lindley   on 

and  origin  of  the  law  of  appropria-  Mines,  sec.  40    et  seq. 

tion  of  water,  see  an  interesting  arti-  1*  Diary   of   James   K.   Polk,   pub- 

cle   in    1   Michigan   Law   Review,   91.  lished    by    A,    C.    McClwg    &    Co., 

See,  also,  Yale  on  Mining  and  Water  Chicago. 


74     (3d  ed.)     Pt.  H.     CALIFORNIA  -  COLOEADO  DOCTRINES.  §  73 

tion  of  the  public  lands.  In  1851,  at  the  instance  of  Stephen 
Field,  then  a  young  member  from  Yuba  County  (and  later  Chief 
Justice  of  California  and  Justice  of  the  United  States  supreme 
court),  the  first  California  legislature  passed  the  following  stat- 
ute:15 "In  actions  respecting  mining  claims,  proof  shall  be  ad- 
mitted of  the  customs,  usages  or  regulations  established  and  in 
force  at  the  bar,  or  diggings  embracing  such  claim;  and  such 
customs,  usages  or  regulations,  when  not  in  conflict  with  the  consti- 
tution and  laws  of  this  State,  shall  govern  the  decision  of  the  ac- 
tion. "16  In  this  way,  by  customs  established  by  themselves,  and 
with  the  sanction  of  the  State  legislature  when  organized,  the 
pioneers  appropriated  to  themselves  the  mines  and  forests  and 
waters  and  other  things  of  the  region. 

(3d  ed.) 

§  73.  Water  Customs  as  Part  of  the  Mining  Customs. — For,  as 
the  use-of  large  quantities  of  water  became  (after  the  advent,  in 
the  second  or  third  year,  of  "sluicing"  and  similar  methods) 
essential  to  mining  operations,  it  became  one  of  the  mining  cus- 
toms or  regulations  that  the  right  to  a  definite  quantity  of  water, 
and  to  divert  it  from  streams  or  lakes,  could  be  acquired  by  prior 
appropriation.  Historically,  the  law  of  appropriation  of  water  is 
merely  a  branch  of  mining  law.  It  was  only  an  extension  of 
the  same  rule  as  that  by  which  possession  of  mining  claims  was 
recognized.17 

is  Civil  Practice  Act  of  April  29,  amazing  the  amount  we  move  and  it 

1851.   sec.   621.   now    see.   748  of  the  astonishes    our    neighbors.     A    lot    of 

Code  of  Civil  Procedure   (with  slight  them     are    looking    out    for     sidehill 

verbal  changes).  diggings   below   us   and   will   try   the 

16  This  statute  was  early  copied  in  same  process.     Anderson  says  it  will 
almost  all  the  other  Western  States;  be   a  good  idea   to   extend   our   ditch  ' 
e.  g.,  Idaho:  Riborado'v.  Quang  Pang  and   sell    water   to    the    miners   who 
etc.  Co.,  2  Idaho,  136   (144),  6  Pac.  might    want    to    use   it,    but    I    don't 
125;  Nevada:  Stats.  1861,  p.  21,  sec.  see  what  right  we  have  got  to  it  more 
77;    Mallett  v.   Uncle   Sam   Min.   Co.,  than   anybody   else.     Anyway   he   has 

1  Nev.  188,  90  Am.  Dec.  484,  1  Morr.  put  a  notice  at  the  head  of  the  ditch 

Min.    Rep.    17.     Utah:      Rev.    Stats.  claiming   all   the   water   it   will   hold, 

1898,  sec.  3521.  and  as  there  is  no  law  in  the  case  he 

17  See     statement    by     reporter    in  says  he  will  make  a  law  out  of  the 
Titcomb  v.  Kirk,  51  Cal.  289,  5  Morr.  precedent."     Diary  of  a  Forty-Niner, 
Min.  Rep.  10.  edited  by  Chauncey  L.    Canfield,  who 

The  following  is  from  an  old  diary  says  in  a    note,   "The  first    claim  to 

of  one  of  the  pioneer  miners  recently  water-rights     on    record    in     Nevada 

published.     Under  date  of  October  19,  County."     This  passage  is  interesting, 

1850,   this   diary  says:    "We    got  the  though   possibly   not    authentic.     The 

ditch  repaired  and  the  water  turned  county  records  were  destroyed  by  fire 

on    the    flat    by    Thursday    and    have  in  1856. 
been  running   off   the  top   dirt.     It's 


§  74  Ch.  5.     HISTORICAL—TO  THE  ACT  OF  I860.     (3d  ed.)     75 

The  fact  probably  is  that,  since  water  customs  did  not  arise 
until  the  second  or  third  year  (the  first  year  being  the  stage  of 
pan  and  shovel,  rocker  and  "long  torn,"  not  requiring  diversion), 
the  statute  below  quoted  adopting  the  general  common  law  was 
already  in  existence.18  No  special  importance  attaches  to  these 
relative  dates,  however;  no  point  has  ever  been  made  of  them, 
for  reasons  hereafter  appearing. 

B.  DEVELOPMENT  OF  THE  CUSTOMS  INTO  LOCAL  LAW. 
(3d  ed.) 

§  74.  The  Questions  Presented  to  the  Courts. — When  the 
State  courts  were  organized  and  received  the  questions  growing 
out  of  these  conditions  (the  first  case  did  not  reach  the  supreme 
court  until  1853),  the  necessity  was  thrown  upon  the  court  of 
giving  legitimacy  in  some  way  to  these  things  that  had  tran- 
spired among  the  miners  and  were  so  firmly  established  through- 
out the  population  then  existing  in  the  State. 

There  was  an  immediate  conflict  of  contentions.  This  conflict 
existed  along  two  distinct  grounds  in  the  water  cases.  One  was 
of  the  relation  of  these  new  rules  to  the  common  law,  which  had 
been  adopted  by  the  statute  of  April  13,  1850,  as  follows:  "The 
common  law  of  England,  so  far  as  it  is  not  repugnant  to  or  in- 
consistent with  the  constitution  of  the  United  States,  or  the  con- 
stitution or  laws  of  this  State,  is  the  rule  of  decision  in  all  the 
courts  of  this  State."19  The  other  was  of  the  relation  of  the 

18  That  statute  was  passed  in  April,  1852:  Kelley  v.  Natoma  W.  Co.,  6 

1850,  ratified  on  the  admission  of  the  Cal.    105,    1    Morr.    Min.    Eep.    592; 

State   in   September,   1850,   while   the  Crandall  v.  Woods,  8  Cal.  137,  1  Morr. 

first    water    ditch    was    probably    not  Min.   Eep.   604;    Parke   v.   Kilham,   8 

built  until  the  end  of  that  year.     In  Cal.    78,   68   Am.   Dec.    310,   4   Morr. 

the  first  ten  volumes  of  the  California  Min.  Eep.  522;  Humphreys  v.  McCall, 

Eeports,   the   following  are  the   dates  9   Cal.   59,   70   Am.   Dec.   621;    Moke- 

of   the   early   ditches   involved  in   the  lumne  Hill  Co.  v.  Woodbury,  10  Cal. 

cases:  185. 

Fall  of  1850:  Kidd  v.  Laird,  15  Cal.  , 

163,  70  Am.  Dec.  472,  4  Morr.  Min.  3es- 

Eep.  571;   Nevada  W.  Co.  v.  Powell,  The  first  attempt  at  quartz  mining 

34  Cal.  109,  91  Am.  Dec.  685,  4  Morr.  was  not  until  1852  (Whitney's  Geology 

Min.  Eep.  253.     See  the  date  of  the  of     California,     p.     224).     The     first 

ditch   given   in   the   diary   just   above  hydraulic  mining  was  not  tried  until 

quoted.  1853   (Browne's  Mineral  Eesources  of 

1851:  McDonald  v.  Bear  E.  Co.,  13  California,  p    116). 

Cal.    226,    1    Morr.    Min.    Eep.    626;  no_. 

Maeris  v.  Bicknell,  7  Cal.  261,  68  Am.  _  "  Stats-  }JfJ»  P-  2195  now  Political 

Dec.    257,    1    Morr.    Min.    Eep.    601;  Code»  **•   4468- 

White   v.    Todd's   Valley   Co.,    8    Cal.  This   adoption   of  the  common   law 

44? ;  Ortman  v.  Dixon,  13  Cal.  37.  was  by  the  constitutional  convention 


76     (Sded.)     Pt.  II.     CALIFORNIA  -  COLORADO  DOCTRINES.      §§75,76 

appropriators  to  the  United  States  government,  the  landowner  of 
*  the  region  which  the  pioneers  were  appropriating  to  themselves 
without  Federal  authorization;  for  the  act  admitting  California 
into  the  Union  had  contained  the  usual  clause  that  the  State  shall 
never  interfere  with  the  primary  disposal  of  the  public  domain 
within  its  limits.  The  first  was  a  question  of  local  law;  the 
second,  a  question  of  Federal  public  land  law. 

Side  by  side  these  questions  have  ever  since  run  through  the 
history  of  the  law  of  waters  in  the  West,  at  different  periods 
the  one  and  then  the  other  assuming  the  more  importance.  In 
the  beginning,  of  which  we  are  now  writing,  it  was  the  second, 
the  relation  to  the  United  States,  which  loomed  largest.  The 
other  question,  of  the  relation  to  the  common  law,  was  never 
serious  then,  being  soon  disposed  of  by  merging  it  into  the  second 
question,  as  we  shall  quickly  see. 

(3d  ed.) 

§  75.  The  Customs  and  the  Common  Law. — The  water  cus- 
toms, based  upon  exclusive  rights  by  priority  of  appropriation, 
were  opposed  to  the  common-law  system  of  riparian  rights.20 
They  did  not  follow  the  rules  of  riparian  rights  because,  in  the 
first  place,  the  miners,  left  so  largely  to  themselves,  did  not  know 
those  rules.  The  miners  were  of  all  nationalities,  from  places 
where  many  different  systems  of  law  prevailed,  and  went  into  a 
wilderness  where  the  law  was  not  represented.  Important  also 
was  the  necessity  of  carrying  the  water  far  from  streams,  and 
muddying  it  with  mining  debris.  But  the  main  reason  was  that 
the  law  of  riparian  rights  is  a  system  for  settled  regions  of  private 
landowners,  while  there  was  here  a  new  and  uninhabited  region 
in  which  no  private  landowners  existed.  Instead  of  finding  the 
streams  inclosed  by  private  land  preventing  access  to  them,  all 
was  public  land,  as  free  and  open  as  the  air. 

(3d  ed.) 

§  76.  The  Customs  and  the  Court. — As  early  as  the  third 
volume  of  the  California  Reports  the  matter  was  before  the  su- 
preme court,  but  the  court  was  not  yet  ready  to  declare  this 

before  the  State's  admission  into  fhe      schedule  of  the  constitution  continued 
Union,    which    did    not    occur    until      all  existing  statutes  in  force. 
September    of    the   same   year.    The          20  Infra,  sec.  666  et  seq. 


§  77  Ch.  5.     HISTORICAL— TO  THE  ACT  OF  1866.     (3d  ed.)     77 

custom  concerning  the  use  of  waters  lawful.21  The  trial  judge 
did  adopt  it  as  the  basis  of  his  charge.  But  the  supreme  court 
said:  "The  rule  laid  down  by  the  court  below,  while  it  is  a  de- 
parture from  all  the  rules  governing  this  description  of  property, 
would  be  impracticable  in  its  application,  and  we  think  it  much 
safer  to  adhere  to  known  principles  and  well-settled  law,  so  far 
as  they  can  be  made  applicable  to  the  novel  questions  growing 
out  of  the  peculiar  enterprises  in  which  many  of  the  people  of 
this  State  are  embarked."  This  case  of  Eddy  v.  Simpson  is  in- 
teresting as  nevertheless  foreshadowing  the  doctrine  which  after- 
ward became  the  rule  of  the  court,  that  prior  possession  of  water 
on  public  land  gives  the  exclusive  right  to  its  use;  and  as  showing 
the  difficulties  the  court  met  in  adjusting  itself  to  the  new  condi- 
tions arising  out  of  the  occupation  by  the  pioneers  of  the  great, 
open,  public  domain.22 

(3d  ed.) 

§  77.    Irwin  v.  Phillips. — The  next  case  before  the  California 

court  succeeded  in  having  the  principle  of  exclusive  right  by  prior 
appropriation  of  water  on  the  public  lands  fully  recognized  and 
accepted.  This  case,  Irwin  v.  Phillips,  5  Cal.  140,23  decided  in 
1855,  is  always  cited  as  the  original  precedent  establishing  the 
rule  of  appropriation.  The  case  was  between  a  canal  owner  who 
had  diverted  water  from  the  public  land,  and  a  miner  who  had 
later  located  on  public  land  from  which  the  stream  had  been 
diverted.  The  opinion  is  of  sufficient  importance  to  be  given  in 
full.24  The  court  said  (per  Heydenfeldt,  J.)  :25 

"The  several  assignments  of  error  will  not  be  separately  con- 
sidered, because  the  whole  merits  of  the  case  depend  really  on  a 
single  question,  and  upon  that  question  the  case  must  be  decided. 

21  Eddy  v.  Simpson,  3  Cal.  249,  58  trinsic  difficulties  in  the  subject  itself 
Am.  Dec.  408,  15  Morr.  Min.  Eep.  175.  that  it  is  almost  impossible  to  settle 

22  The  difficulties  in  the  way  of  the  satisfactorily,  even  by  the  application 
court  caused  the  court  later  in  a  case  to  them  of  the  abstract  principles  of 
involving  the  diversion  of  water  to  re-  justice.     Yet  we  are  compelled  to  de- 
mark  in  Bear  River  Water  Co.  v.  New  eide  these  cases,  because  they  must  be 
York  Min.  Co.,  8  Cal.  327,  at  333,  68  settled  in  some  way,  whether  we  can 
Am.  Dec.  325,  4  Morr.  Min.  Rep.  526:  say  after  it  is  done  that  we  have  given 
"The  business  of  gold  mining  was  not  a  just  decision  or  not." 

only  new  to  our  people,  and  the  cases  23  63  Am.  Dec.  113,  15  Morr.  Min. 

arising  from  it  new  to  our  courts,  and  Ren.  178. 

without  judicial   or  legislative  prece-  24  The  italics  are  ours. 

dent,  either  in  our  own  country  or  in  25  Murray.  C.  J.,  concurred,  though 

that    from   which   we   have    borrowed  he    dissented    in   Conger    v.    Weaver, 

our  jurisprudence;   but  there  are  in-  infra,  sec.  89. 


78     (3d  ed.)     Pt.  II.     CALIFORNIA  -  COLORADO  DOCTRINES.  §  77 

The  proposition  to  be  settled  is  whether  the  owner  of  a  canal  in 
the  mineral  region  of  this  State,  constructed  for  the  purpose  of 
supplying  water  to  miners,  has  the  right  to  divert  the  water  of  a 
stream  from  its  natural  channel,  as  against  the  claims  of  those  who, 
subsequent  to  the  diversion,  take  up  lands  along  the  banks  of  the 
stream  for  the  purpose  of  mining.  It  must  be  premised  that  it 
is  admitted  on  all  sides  that  the  mining  claims  in  controversy,  and 
the  lands  through  which  the  stream  runs  and  through  which  the 
canal  passes,  are  a  part  of  the  public  domain,  to  which  there  is 
no  claim  of  private  proprietorship;  and  that  the  miners  have  the 
right  to  dig  for  gold  on  the  public  lands  was  settled  by  this  court 
in  the  case  of  Hicks  et  al.  v.  Bell  et  al.,  3  Cal.  219.26 

"It  is  insisted  by  the  appellants  that  in  this  case  the  common- 
law  doctrine  must  be  invoked,  which  prescribes  that  a  watercourse 
must  be  allowed  to  flow  in  its  natural  channel.  But  upon  an 
examination  of  the  authorities  which  support  that  doctrine,  it  will 
be  found  to  rest  upon  the  fact  of  the  individual  rights  of  landed 
proprietors  upon  the  stream,  the  principle  being  both  at  the  civil 
and  common  law  that  the  owner  of  lands  on  the  banks  of  a  water- 
course owns  to  the  middle  of  the  stream,  and  has  the  right  in 
virtue  of  his  proprietorship  to  the  use  of  the  water  in  its  pure 
and  natural  condition.  In  this  case  the  lands  are  the  property 
either  of  the  State  or  of  the  United  States,  and  it  is  not  necessary 
to  decide  to  which  they  belong  for  the  purposes  of  this  case.  It 
is  certain  that  at  the  common  law  the  diversion  of  watercourses 
could  only  be  complained  of  by  riparian  owners,  who  were  deprived 
of  the  use,  or  those  claiming  directly  under  them.27  Can  the  ap- 
pellants assert  their  present  claim  as  tenants  at  will?  To  solve 
this  question  it  must  be  kept  in  mind  that  their  tenancy  is  of  their 
creation,  their  tenements  of  their  own  selection,  and  subsequent, 
in  point  of  time,  to  the  diversion  of  the  stream.  They  had  the 
right  to  mine  where  they  pleased  throughout  an  extensive  region, 
and  they  selected  the  bank  of  a  stream  from  which  the  water  had 
been  already  turned,  for  the  purpose  of  supplying  the  mines  at 
another  point. 

"Courts  are  bound  to  take  notice  of  the  political  and  social  con- 
dition of  the  country  which  they  judicially  rule.  In  this  State 

20  Note  the  way  this  is  put.  The  the  land  being  public  land,  neither 

court  says  it,  itself,  settled  the  right  litigant  was  a  landowner,  and  hence 

to  mine  on  public  land.  And  that  is  neither  could  claim  to  be  a  riparian 

just  what  happened,  as  time  went  on.  proprietor,  not  owning  the  soil. 

27  The  court  here  has  in  mind  that, 


§  77  Ch.  5.     HISTORICAL— TO  THE  ACT  OF  1866.     (3d  ed.)     79 

the  larger  part  of  the  territory  consists  of  mineral  lands,  nearly 
the  whole  of  which  are  the  property  of  the  public.  No  right  or 
intent  of  disposition  of  these  lands  has  been  shown  either  by  the 
United  States  or  the  State  governments,  and  with  the  exception 
of  certain  State  regulations,  very  limited  in  their  character,  a  sys- 
tem has  been  permitted  to  grow  up  by  the  voluntary  action  and 
assent  of  the  population,  whose  free  and  unrestrained  occupation 
of  the  mineral  region  has  been  tacitly  assented  to  by  the  one  gov- 
ernment, and  heartily  encouraged  by  the  expressed  legislative 
policy  of  the  other.  If  there  are,  as  must  be  admitted,  many 
things  connected  with  this  system,  which  are  crude  and  undigested, 
and  subject  to  fluctuation  and  dispute,  there  are  still  some  which 
a  universal  sense  of  necessity  and  propriety  have  so  firmly  fixed 
as  that  they  have  come  to  be  looked  upon  as  having  the  force  and 
effect  of  res  judicata.  Among  these  the  most  important  are  the 
rights  of  miners  to  be  protected  in  the  possession  of  their  selected 
localities,  and  the  rights  of  those  who,  by  prior  appropriation, 
have  taken  the  waters  from  their  natural  beds,  and  by  costly  arti- 
ficial works  have  conducted  them  for  miles  over  mountains  and 
ravines,  to  supply  the  necessities  of  gold  diggers,  and  without 
which  the  most  important  interests  of  the  mineral  region  would 
remain  without  development.  So  fully  recognized  have  become 
those  rights,  that,  without  any  specific  legislation  conferring  or 
confirming  them,  they  are  alluded  to  and  spoken  of  in  various  acts 
of  the  legislature  in  the  same  manner  as  if  they  were  rights  which 
had  been  vested  by  the  most  distinct  expression  of  the  will  of  the 
lawmakers ;  as,  for  instance,  in  the  Revenue  Act  '  canals  and  water- 
races '  are  declared  to  be  property  subject  to  taxation,  and  this 
when  there  was  none  other  in  the  State  than  such  as  were  devoted 
to  the  use  of  mining.  Section  2  of  article  9  of  the  same  act,  pro- 
viding for  the  assessment  of  the  property  of  companies  and  asso- 
ciations, among  others  mentions  'dam  or  dams,  canal  or  canals,  or 
other  works  for  mining  purposes. '  This  simply  goes  to  prove  what 
is  the  purpose  of -the  argument,  that  however  much  the  policy  of 
the  State,  as  indicated  by  her  legislation,  has  conferred  the  priv- 
ilege to  work  the  mines,  it  has  equally  conferred  the  right  to  divert 
the  streams  from  their  natural  channels,28  and  as  these  two  rights 
stand  upon  an  equal  footing,  when  they  conflict,  they  must  be 

28  Bear  in  mind  that  it  is  of  streams       is  speaking;  it  started  with  that  as  a 
on  the  public  domain  that  the  court      premise. 


80     (3ded.)     Pt.  II.     CALIFORNIA  -  COLORADO  DOCTRINES.  §78 

decided  by  the  fact  of  priority,  upon  the  maxim  of  equity,  'Qui 
prior  est  in  tempore,  potior  est  in  jure.'  The  miner  who  selects 
a  piece  of  ground  to  work,  must  take  it  as  he  finds  it,  subject  to 
prior  rights,  which  have  an  equal  equity,  on  account  of  an  equal 
recognition  from  the  sovereign  power.  If  it  is  upon  a  stream,  the 
waters  of  which  have  not  been  taken  from  their  bed,  they  cannot 
be  taken  to  his  prejudice;  but  if  they  have  been  already  diverted, 
and  for  as  high  and  legitimate  a  purpose  as  the  one  he  seeks  to 
accomplish,  he  has  no  right  to  complain,  no  right  to  interfere 
with  the  prior  occupation  of  his  neighbor,  and  must  abide  the  dis- 
advantages of  his  own  selection. 

"It  follows  from  this  opinion  that  the  judgment  of  the  court 
below  was  substantially  correct,  upon  the  merits  of  the  case  pre- 
sented by  the  evidence,  and  it  is  therefore  affirmed. ' ' 

(3d  ed.) 

§  78.  Prior  Rights  by  Appropriation  Upheld  by  the  Courts. — 
This  is  the  pioneer  Western  decision  recognizing  the  doctrine. 
The  rule  of  prior  appropriation  of  water  on  public  land  was  thus 
established  independently  of  legislation.  The  act  of  April,  1850, 
had  adopted  the  common  law  as  a  general  rule  of  decision  in  the 
State,  and  the  act  of  1851  had  adopted  the  customs  of  miners 
where  not  in  conflict  with  the  laws  of  the  State,  and  an  act  (men- 
tioned in  the  opinion)  had  taxed  ditches  and  canals;  but  closer 
than  this  there  was  nothing.  Nor  were  the  courts  aided  by  direct 
legislation  until  the  act  of  the  Federal  Congress  of  1866. 

The  case  treated  together  both  the  questions  to  which  we  have 
referred;  that  is,  the  question  of  local  law  involving  riparian 
rights,  and  the  question  of  Federal  public  land  law.  The  common 
law  was  held  inapplicable,  not  because  "unsuited  to  public  wel- 
fare," but  because  there  was  no  private  land  on  the  stream. 
Adopting  the  argument  of  counsel  (afterward  judge  of  the  supreme 
court),  Baldwin,  the  court  expressly  excluded  riparian  rights  from 
a  consideration  of  the  case  because  it  was  all  vacant  public  land. 
The  intention  was,  said  a  contemporary  writer,1  to  provide  an 
entirely  new  system  wherever  the  mining  customs  prevailed  (which 
customs  prevailed  on  what  was  then  all  public  domain).  But  at 
the  same  time  it  must  be  carefully  noted  that  it  was  premised  in 
the  case  as  "admitted  on  all  sides  that  the  lands  through  which 

i  Yale  on  Mining  Claims  and  Water  Rights,  p.  161. 


§  79  Ch.  5.     HISTORICAL— TO  THE  ACT  OF  1866.     (3d  ed.)     81 

the  stream  runs  are  a  part  of  the  public  domain,  to  which  there 
is  no  claim  of  private  proprietorship,"  and  "if  it  is  upon  a  stream 
the  waters  of  which  have  not  been  taken  from  their  bed,  they 
cannot  be  taken  to  his  [meaning  the  private  landowner's]  preju- 
dice," which  exception  has  since  overshadowed  the  rest,  in  Cali- 
fornia. 

The  case  having  thus  held  riparian  rights  not  involved  because 
there  was  no  private,  but  only  public,  land  on  the  stream,  then 
went  on  to  hold  for  the  public  land  that  both  the  United  States 
and  State,  whichever  may  be  the  owner,  had  permitted  "free  and 
unrestrained  occupation  of  the  mineral  region,"  so  as  to  give 
the  customs  the  force  of  "res  judicata"  and  thereby  "conferred 
the  right  to  divert  the  streams"  ;  and  thus  the  court  merged  the 
whole  matter  into  a  question  of  public  land  law.2 

(3d  ed.) 

§  79.  Endeavors  to  Follow  and  not  Disregard  the  Common 
Law. — Although  the  question  of  Federal  public  land  law  became 
controlling,  there  was  also  difficulty  in  the  position  taken  as  a 
question  of  local  State  law. 

The  court  was  in  some  quarters  accused  of  judicial  legislation 
because  the  legislature  had  adopted  the  common  law  as  the  gen- 
eral rule  of  decision  by  the  statute  already  quoted.  Chief  Justice 
Murray  had  first  opposed  the  recognition  of  the  doctrine  of  ap- 
propriation at  all,  dissenting  in  Conger  v.  Weaver;3  and  when 
overruled  by  the  rest  of  the  court,  acquiesced  only  on  the  ground 
(now  the  basis  of  the  "Colorado  doctrine"4)  that  the  statute 
had  not  adopted  the  common  law  because  unsuited  to  conditions.5 

2  A  very  concise  statement  of  the  recognize  them.     In  this  way  the  rule 

situation  under   which   Irwin  v.  Phil-  of    appropriation    became    established 

lips  was  decided  is  given  in  the  recent  in  the  Pacific  States,  in  opposition  to 

case  of  Meng  v.  Coffey,  67  Neb.  500,  the    common    law,    with   reference    to 

108  Am.  St.  Rep.  697,  93  N.  W.  713,  streams    or    bodies    of    water    which 

60  L.  R.  A.  910,  saying  that  govern-  wholly  ran   through   or  were  situated 

ment  and  law  were  not  yet  established,  upon  ihe  public  lands  of  the  United 

there  was  no  agricultural  population,  States." 

and    were    no    riparian    owners,    and  3  6   Cal.   548,   65   Am.   Dec.   528,   1 

streams   could   be   put   to   no   use   ex-  Morr.  Min.  Rep.  594. 

cept    for    mining.     "It    was    a    crude  4  Infra,  sec.  167. 

attempt  to  preserve  order  and  the  gen-  c  Hoffman   v.    Stone,   7   Cal.   47,   4 

eral    peace,    and   to    settle    customary  Morr.    Min.    Rep.    520;     Crandall    v. 

rights  among  a  body  of  men  subject  Woods,  8  Cal.  136,  1  Morr.  Min.  Rep. 

to  no  law,  under  which  so  many  and  604.     See,  also,  Hill  v.  King,  8  Cal. 

so  valuable  rights  arose  that  when  the  338,  4  Morr.  Min.  Rep.  533. 
law    stepped    in    it    was    obliged    to 
Water  Rightg — 0 


82     (3d  ed.)     Pt.  II.     CALIFORNIA  -  COLOKADO  DOCTRINES.  §  79 

His  opinions  were,  however,  the  only  ones  at  that  time  taking  that 
ground,  and  it  was  regarded  by  some  as  an  admission  by  the  chief 
justice  that  the  court  had  simply  entered  into  judicial  legislation.6 

Such  criticism,  whether  now  appearing  sound  or  not,  at  that 
day,  when  the  matter  was  all  new  and  untried,  induced  in  some 
of  the  judges  a  desire  to  reconcile  their  decisions  to  the  common 
law,  and  not  to  acknowledge  a  departure  from  it.  For  example, 
in  Conger  v.  Weaver  the  court  said:  "In  the  decisions  we  have 
heretofore  made  upon  the  subject  of  private  rights  in  the  public 
domain,  we  have  applied  simply  the  rules  of  the  common  law.  We 
have  found  that  its  principles  have  abundantly  sufficed  for  the  de- 
termination of  all  disputes  which  have  come  before  us,  and  we 
claim  that  we  have  neither  modified  its  rules,  nor  have  we  attempted 
to  legislate  upon  any  pretended  ground  of  their  insufficiency." 

The  first  explanation  to  this  effect  rested  upon  the  merger  that 
had  been  made  with  the  question  of  the  government  title.  Conger 
v.  Weaver,  below  quoted,7  said  it  had  applied  simply  the  common- 
law  rule  in  respect  to  presumption  of  title  of  mere  possessors  on 
a  third  person's  (the  government's)  land,  or  water,  one  against 
the  other,8  and,  at  the  same  time,  against  the  government  itself 
as  landowner,  estoppel  by  conduct,  and  grant  of  right  conclusively 
presumed  upon  equitable  grounds  to  bind  the  United  States,  being 
matters  with  which  we  shall  find  the  subsequent  history  having 
much  to  do;  here  mentioned  only  because  they  were  then  said 
to  be  applications  of  the  common  law.9  (It  may  be  that,  applied 
to  ordinary  private  landowners,  such  arguments  would  not  have 
disturbed  the  common  law ;  but  the  United  States  was  not  an  ordi- 
nary landowner,  but  a  very  extraordinary  one,  owning  the  whole 
State ;  and  when  applied  to  such  a  case,  a  new  law  between  the  citi- 

6  In   Yale    on   Mining    Claims   and  court  in  the  days  of  its  early  organi- 

Water  Rights,  page   129,  the  learned  zation." 

author   says:    "The   complaint   of   the  7  Infra,  sec.   89. 

supreme  court  was,  in  the  opinion  of  8  See  infra,  sees.  246,  627. 

some  of  its  members,  that  they  were  9  The  leading  authority  upon  inin- 

compelled    to    take    the   place    of    the  ing  rights  holds   that  certain  mining 

legislature  in  framing  rules  in  regard  rights    arising    out    of    the    pioneer 

to    water-rights.     This    was    undoubt-  Possessory  System  are  not  in  deroga- 

edly  the  case;   the  only  rule  adopted  tion   of   the   common   law.      (Lindley 

by   the   legislature   touching   the   sub-  on  Mines,  sees.  535  et  seq.,  568,  speak- 

ject  was  the  adoption  of  the  common  ing  of  the  theory  of  the  extralateral 

law   as   the   rule   of   decision,   by   the  right  in  mining,  and  saying:   "Instead 

act  of  April,  1850.     It  was,  therefore,  of  being  in  derogation  of  the  common 

as  the  chief  justice  said,  left  to   the  law,  this  class  of  grants  is  in  absolute 

courts,  and  this  can  be  admitted  with-  harmony  with  it."     Sec.  568.) 
out  injustice  to  the  members  of  the 


§  80  Ch.  5.     HISTORICALr— TO  THE  ACT  OF  1866.     (3d"ed.)     83 

zens  on  the  public  lands  was  made  in  practice  concerning  waters. 
Any  consistency  with  the  common  law  upon  such  arguments  was 
remote,  while  the  inconsistency  in  detail  was  immediate.) 

A  second  ground  of  reconciling  the  rules  of  water  appropriation 
to  the  common  law  appeared  later.  The  common  law  of  riparian 
rights  regards  all  riparian  proprietors  (all  landowners  upon  a 
stream's  banks)  as  upon  an  equal  footing,  their  rights  being  cor- 
relative or  adjustable  for  their  common  benefit,  refusing  to  recog- 
nize a  right  in  anyone  by  priority,  and  giving  each  a  reasonable 
use  of  the  stream  for  his  own  land  at  any  time.10  In  some  early 
California  cases  the  court  argued  that  the  rights  of  an  appropriator 
were  likewise  correlative  to  those  of  later  users,  so  as  not  to  be 
independent  or  exclusive,  following  out  to  some  extent  the  policy 
of  Conger  v.  Weaver  that  the  common  law  had  not  been  departed 
from.  This  did  not  prevail,  however.  It  is  considered  at  some 
length  hereafter.11 

(3d  ed.) 

§  80.    The  Common  Law  Departed  from. — Despite  these  few 

early  attempts  to  reconcile  the  doctrine  of  appropriation  to  the 
common  law,  the  consensus  of  opinion  has,  as  to  water-rights  at 
all  events,  long  admitted  that  the  doctrine  of  prior  right  by  appro- 
priation is  in  derogation  of  the  common  law12  (though  there  has 
never,  so  far  as  the  writer  has  found,  been  any  attempt  to  nar- 
rowly construe  the  subsequent  statutes  on  that  account).  In  the 
first  case  dealing  with  water-rights  the  California  court,  as  already 
quoted,  said  that  the  rule  "is  a  departure  from  all  the  rules  gov- 

10  See  infra,  sees.  310,  739.     True,  of     point     of  diversion.     (Kidd     v. 
there   were   some   earlier   English    de-  Laird,  15  Gal.  161,  76  Am.  Dec.  472, 
cisions  favoring  the  doctrine  of  prior  4   Morr.    Min.  Rep.    571.     See    infra, 
appropriation    (infra,   sees.   666-669),  see.  496.) 

but   the   pioneer   California   court   re-  12  Lux  v.  Haggin,  69  Cal.   255,  10 

f erred   to   them   only   once,   and   then  Pac.   674,   saying:     "The   doctrine   of 

only  to  disclaim  reliance  upon  them,  in  'appropriation,'   so   called,   is   not   the 

Hill  v.  King,  8  Cal.  336,  4  Morr.  Min.  doctrine  of  the  common  law."     Atchi- 

Rep.  533.  son  v.  Peterson,  87  U.  S.  507,  22  L. 

11  Infra,  sec.  310  et  seq.  Ed.    414,    1    Morr.    Min.    Rep.    583; 
It  may  be  noted  that  in  some  fea-  Basey  v.  Gallagher,  87  U.  S.  670,  22 

tures  the  law  of  appropriation  never-  L.   Ed.  452,  1  Morr.  Min.   Rep.   683; 

theless   clearly    did   borrow    from   the  Jennison  v.  Kirk,  98  U.  S.  453,  25  L. 

common    law.     Thus    was    early    bor-  Ed.    240,    4    Morr.    Min.    Rep.    504; 

rowed  the  principle  that  the  right  is  Yale    on    Mining    Claims    and    Water 

solely   usufructuary     (Eddy   v.   Simp-  Rights,   129,   137;    Pomeroy  on  Ripa- 

son,  3  Cal.  249,  58  Am.  Dec.  408,  15  rian  Rights,  sec.   20.     See  infra,  sec. 

Morr.  Min.  Rep.  175.     See  infra,  see.  180  et  seq.,  views  of  the  supreme  court 

276),  and  the  rule  permitting  change  of  the  United  States. 


84     (3ded.)     Pt.II.     CALIFOENIA  -  COLOEADO  DOCTRINES. 


80 


erning  this  description  of  property,"13  and  in  other  early  cases 
said  that  the  adoption  of  it  was  ' '  an  innovation  upon  the  old  rules 
of  law  upon  this  subject,"14  and  "without  judicial  or  legislative 
precedent,  either  in  our  own  country,  or  in  that  from  which  we 
have  borrowed  our  jurisprudence, ' ' 15  and  in  the  same  case  said : 
"In  these  mining  cases  we  are  virtually  projecting  a  new  system." 
Mr.  Yale  said:  "In  some  instances,  as  in  the  case  of  water-rights, 
the  courts  departed  from  the  rules  of  the  common  law,  which, 
under  the  general  law  of  the  State,  was  the  rule  of  decision. ' ' 16 
To-day  this  is  practically  the  universal  view,  and  we  may  accept 
Professor  Pomeroy  's  conclusion :  ' '  There  are  undoubtedly  some 
dicta  to  be  found  in  a  few  of  the  California  cases  which  seem  to 
assume  or  to  suppose  that  the  conclusions  reached  by  the  court 
were  in  agreement  with  the  common-law  doctrines.  These  dicta 
differ  widely  from  the  general  course  of  reasoning  pursued  by  the 
State  judges,  and  especially  from  that  adopted  by  the  United  States 
supreme  court;  and  they  are,  as  it  seems  to  me,  utterly  irrecon- 
cilable with  many  subsequent  decisions,  establishing  more  special 
rules,  made  by  the  State  and  the  Federal  courts."  17 


13  Eddy  v.  Simpson,  3  Cal.  249,  58 
Am.  Dec.  408,  15  Morr.  Min.  Eep.  175. 

14  Crandall  v.   Woods,   8   Cal.    136, 
at  142,  1  Morr.  Min.  Rep.  604. 

is  Bear  Elver  W.  Co.  v.  New  York 
M.  Co.,  8  Cal.  327,  at  333,  68  Am. 
Dee.  325,  4  Morr.  Min.  Eep.  526. 
Likewise  Murray,  C.  J.,  in  Hoffman  v. 
Stone,  7  Cal.  49,  4  Morr.  Min.  Eep. 
520. 

16  Yale  on  Mining  Claims  and 
Water  Eights,  p.  v.  See  counsel 
arguing  in  Fleming  v.  Davis  (1872), 
37  Tex.  173,  -with  regard  to  Con- 
ger v.  Weaver.  Also  with,  regard  to 
Conger  v.  Weaver,  it  is  said  in  Kin- 
ney  on  Irrigation:  "It  seems  strange 
that  the  early  California  decisions  re- 
specting water-rights,  which  are  di- 
rectly opposed  to  the  common-law 
rules  respecting  the  same,  as  univer- 
sally understood  and  expounded  by 
the  courts  of  England  and  of  the 
United  States,  should  be  based  upon 
'one  favorite  and  much  indulged  doe- 
trine'  of  the  common  law  itself — the 
doctrine  of  presumption.  Yet,  in 
spite  of  the  seeming  inconsistency, 


such  is  the  fact."     (Kinney  on  Irriga- 
tion, p.  168.) 

17  Pomeroy  on  Eiparian  Eights,  p. 
21.  Compare,  however,  the  following: 
"When  the  pioneers  of  1849  reached 
this  State,  they  found  no  laws  in 
force  governing  rights  to  take  waters 
from  surface  streams  for  use  on  non- 
riparian  lands.  Yet  it  was  found 
that  the  principles  of  the  common  law, 
although  not  previously  applied  to 
such  cases,  could  be  adapted  thereto, 
and  were  sufficient  to  define  and 
protect  such  rights  under  the  new 
conditions."  Shaw,  J.,  in  Katz  v. 
Walkinshaw,  141  Cal.  116,  99  Am.  St. 
Eep.  35,  70  Pac.  663,  74  Pac.  766,  64 
L.  E.  A.  236.  See,  also,  Shaw,  J.,  in 
Duckworth  v.  Watsonville  Co.,  150 
Cal.  520,  89  Pac.  338,  speaking  of 
"common-law  appropriation."  (See 
infra,  sec.  246.)  It  may  be  men- 
tioned regarding  this,  that  the  pioneer 
appropriators  were  frequently  ripa- 
rian and  not  nonriparian  occupants. 
See  Hill  v.  King,  8  Cal.  338,  4  Morr. 
Min.  Eep.  533. 


§§81,82  Ch.  5.     HISTORICAL— TO  THE  ACT  OF  1866.     (3d  ed.)     85 

The  view  which  early  came  into  general  acceptance  was  that  the 
common  law  had  been  displaced  by  the  customs  of  the  region  and 
the  State  statute  and  decisions  recognizing  them.18 

It  was  upon  this  basis  that  controversies  between  the  pioneers 
were  settled  among  themselves  in  opposition  to  the  common  law. 

(3d  ed.) 

§  81.    The  Question  of  the  Common  Law  Subordinated. — But, 

as  already  said,  this  question  of  local  law  regarding  the  departure 
from  the  common  law  of  waters,  remained  a  subordinate  one 
throughout  the  pioneer  days.  The  question  of  the  relation  of  the 
pioneers  to  the  government  as  landowner  of  the  public  lands  gath- 
ered in  the  other  question  and  absorbed  it.  It  soon  became  a 
question  (whether  correctly  so  or  not)  of  not  what  was  the  local 
law  of  waters,  but  what  was  the  public  land  law.  The  great  ques- 
tion was,  not  whether  the  pioneer  miners  on  the  public  domain 
had  common-law  water-rights  or  not,  but  whether  they  had  any 
rights  at  all. 


C.  THE  QUESTION  OF  FEDERAL  PUBLIC  LAND  LAW. 
(3d  ed.) 

§  82.  Who  was  the  Ultimate  Proprietor? — A  resort  to  the 
customs  was  sufficient  to  determine  controversies  between  the 
people  themselves.  Yet  in  reality  the  pioneers,  in  spreading  over 
the  region,  had  come  as  strangers  to  the  land.  Who  actually  owned 
the  land  and  the  rest  of  these  things?  There  was  an  attempt  at 
first  to  say  that  the  State  was  the  real  proprietor  of  the  mines 
under  the  "regalian"  theory.19  Wyoming  to-day,  with  regard  to 
waters  on  the  public  domain,  leads  a  strong  following  to  the  effect 

18  The  opinion  in  Morton  v.  Solam-  tied   down   to   the   treadmill   of   the 

bo    Min.    Co.,    26    Cal.    533,    4    Morr.  common    law    to    readily    escape    its 

Min.  Rep.  463,  per  Sanderson,  C.  J.,  thri.ldom  while  engaged   in  the  solu- 

expresses  this  in  a  frequently  quoted  tion    of    a   mining    controversy,"    etc. 

passage:  "Having  received  the  sane-  And  yet  the  same  judge  in  the  next 

tion  of  the  legislature  they   [the  cus-  volume  of  the  reports  declared  in  just 

toms]   have  become  as  much  a  part  as  emphatic  terms  that  the  new  water 

of  the  law  of  the  land  as  the  com-  decisions  were  not  a  departure   from 

mon     law     itself     which     was     not  the  common  law,  as  had  come  to  be 

adopted    in    a    more    solemn    form."  the  prevalent  "notion,"  as  he  calls  it. 

And   he   says   it   is   to   be   regretted  Hill  v.   Smith,   27   Cal.   476,   4   Morr. 

that    the   courts   and  the  legal  pro-  Min.  Rep.  597,  quoted  infra,  sec.  311. 

fession   "seem  to  have  been  too  long  i»  Hicks  v.  Bell,  3  Cal.  219. 


86     (3ded.)     Pt.  II.     CALIFORNIA -COLORADO  DOCTRINES.  §83 

of  State  proprietorship  of  waters.20  But  the  sentiment  of  the 
Eastern  part  of  the  country  then  as  well  as  now  held  the  mines 
and  waters  and  other  natural  resources  to  be  Federal  property 
and  part  of  the  public  domain  of  the  United  States.21  The  Cali- 
fornia court  next  said  it  may  be  either  the  State  or  national  govern- 
ment ; K  but  when  the  question  came  up  for  decision,  at  the  time  of 
the  opening  of  the  Civil  War,  the  court  emphatically,  under  the 
leadership  of  Judge  Field,  held  the  lands  and  everything  connected 
with  the  soil  to  belong  to  the  United  States.23  The  pioneers  them- 
selves had  accepted  this,1  and  the  records  of  the  time  are  wholly 
lacking  in  any  attempt  to  distinguish  waters  from  lands  and  mines. 
All  went  together  in  the  mind  of  the  day  as  one  large  question  aris- 
ing out  of  ownership  by  the  United  States. 

(3d  ed.) 

§  83.    The  Pioneers  as  Trespassers  Against  the  United  States. 

Since,  then,  an  outstanding  title  was  recognized  to  all  this  region, 
the  question  was  raised,  not  whether  the  pioneer  miners  on  the 
public  domain  had  common-law  water-rights  or  not,  but  whether 
they  had  any  rights  at  all.  The  people  had,  from  the  first  dis- 
covery, been  declared  trespassers  against  the  United  States  by 
Colonel  Mason,  and  the  same  contention  appeared  before  the 
courts  in  suits  which  arose  between  the  miners.2  General  Hal- 
leek,  in  his  pioneer  book  on  mining  law,  laid  it  down  that  the  United 
States  district  attorney  could  file  suit  to  oust  all  from  the  region.3 
Colonel  Mason  had  spoken  offhaad,  but  lawyers  now  cited  the 

20  Infra,  sec.  170.  the   protection   and   regulation,"    etc., 

21  Yale     on     Mining     Claims     and  or   "As   Congress   has   made   no   rules 
Water  Rights,  c.  I.  and  regulations,"   etc.     Yale  on  Min- 

22  Irwin  v.  Phillips,  5  Cal.  140,  63  ing  Claims  and  Water  Rights,  pp.  70, 
Am.    Dec.    113,    15    Morr.    Min.    Rep.  84. 

178;    Conger   v.   Weaver,   6   Cal.   548,  2  "As  this  wealth  came  from  pub- 

65  Am.  Dec.  528,  1  Morr.  Min.  Rep.  lie    land     belonging     to     the    United 

594;  Bear  River  etc.  Co.  v.  New  York  States,  he   [Colonel  Mason]   took  into 

etc.  Co.,  8  Cal.  327,  68  Am.  Dec.  325,  serious  deliberation  how  he  could  se- 

4  Morr.  Min.  Rep.  526.  cure  for  the  government  a  reasonable 

23  Moore  v.  Smaw,  17  Cal.  199,  79  rent   or   fee   for   the   privilege   of   ex- 
Am.    Dec.    123,    12    Morr.   Min.    Rep.  tracting     it."     Hittell's     History     of 
418,     Field,     C.     J.,     rendering     the  California,  vol.   Ill,   p.   693. 
opinion.  3  Halleck's  Introduction  to  De  Fooz. 

i  In    their   engrossed    customs    and  Halleck  had  been  a  lieutenant  under 

regulations     they     had     placed     pre-  Colonel  Mason  on  the  same  expedition 

ambles  such  as  "Whereas  the  Congress  as   Sherman,  both  remaining  in  Cali- 

•of    the    United   States    have    in    their  fornia  during  the  fifties,   Halleck   to 

wisdom    made    it    incumbent    on    the  drift  into  law  practice,  while  Sherman 

miners    of    the    various    districts    of  went  into  banking. 
California,  to  provide  such  laws  for 


§  84  Ch.  5.     HISTOKICALr— TO  THE  ACT  OF  1866.     (3d  ed.)     87 

authorities  to  show  that  digging  for  minerals  on  the  public 
domain  of  the  United  States  was  a  trespass,  entitling  the  govern- 
ment to  damages  in  an  action  at  law,  and  was  such  waste  as  would 
be  restrained  by  injunction.4  By  tb.e  act  of  the  3d  of  March,  1807, 
to  prevent  settlements  on  lands  ceded  to  the  United  States  until 
authorized  by  law,  the  President  was  empowered,  by  aid  of  the 
marshals  of  the  United  States  and  the  military  force,  to  remove 
intruders  from  the  public  land,  and  the  improvements  upon  their 
settlements  became  forfeited  to  the  government.  It  was  later  said : 
"By  the  United  States  statutes  in  force,  both  miners  and  ditch- 
owners  were  trespassers  on  the  public  lands  and  could  have  been 
removed  by  the  military. ' '  5 

From  the  contention  arising  here  came  the  point  upon  which  the 
California  law  finally  turned.  There  were  leading  lawyers  who 
denied  any  right  in  the  California  courts  to  do  anything  but  to 
adjust  the  rights  of  trespassers  between  themselves ;  claiming  that 
until  Congress  passed  statutes  it  was  of  no  moment  who  had  the 
ultimate  right  to  the  mines  or  waters ;  that,  as  between  the  pioneers 
themselves,  at  all  events,  prior  possession  was  good  enough,  by  the 
common  law  itself,  against  a  mere  later  possessor ;  and  that  this 
was  all  that  concerned  the  California  judges.  Hence  the  designa- 
tion of  private  rights  to  real  estate  throughout  the  West  as  "pos- 
sessory rights,"  referring  not  only  to  waters,  but  to  mines  and 
lands  as  well;  meaning  that  no  one  could  have  title  to  waters  (or 
to  anything  else)  until  Congress  should  be  heard  from. 

.  (3d  ed.) 
§  84.    Spread  of  the  Possessory  System. — The  entire  West  was 

at  this  period  unsettled  vacant  public  domain,  and  people  con- 
tinued coming  in ;  some  for  the  California  gold-fields,  but  stopping 
before  reaching  them,  some  leaving  the  California  gold-fields  in 
search  of  new  ones,  and  some,  who  had  gone  to  California,  giving 
up  gold  hunting  and  turning  to  farming  and  other  pursuits  in  the 

4  Yale  on  Mining  Claims  and  Water  These  rights  belonged  to  the  govern- 

Rights,    p.    331.     This    contemporary  ment  as  a  proprietor  of  the  land  in 

writer  set  forth  the  situation  as  fol-  common  with  an  individual  owner  of 

lows :   "Digging   for   minerals   on   the  land,  in  the  absence  of  protective  legis- 

public   domain   of   the   United    States  lation.     They    were    also    secured    by 

was  a  trespass,  entitling  the  govern-  legislation." 

ment  to  damages  in  the  action  at  law;  5  Reporter's  Statement  in  Titcomb 

and  was  such  waste  as  would  be  re-  v.  Kirk,  51  Cal.  288,  at  290,  5  Morr. 

strained  by  an  injunction  from  a  court  Min.  *Rep.  10. 
of  chancery,  pending  the  action  at  law. 


88     (3d  ed.)     Pt.  H.     CALIFOKNIA  -  COLORADO  DOCTRINES.  §  84 

California  and  other  Western  valleys.  They  took  possession  of 
the  public  lands,  mines,  water  and  timber  wherever  they  located, 
following  out  as  between  themselves  the  customs  and  rules  of  prior 
appropriation  of  all  of  these  things  prevailing  in  California,  and 
not  hearing  from  Congress  one  way  or  the  other.6  Private  rights 
to  real  estate  all  rested  upon  this  rule  of  priority  of  occupation 
upon  public  land.  "For  a  long  period  the  general  government  stood 
silently  by  and  allowed  its  citizens  to  occupy  a  great  part  of  its 
public  domain  in  California,  and  to  locate  and  hold  mining  claims, 
water-rights,  etc.,  according  to  such  rules  as  could  be  made  applic- 
able to  the  peculiar  situation ;  and  when  there  were  contests  between 
hostile  claimants,  the  courts  were  compelled  to  decide  them  without 
reference  to  the  ownership  of  the  government,  as  it  was  not  urged  or 
presented.  In  this  way — from  1849  to  1866 — a  system  had  grown 
up  under  which  the  rights  of  locators  on  the  public  domain,  as  be- 
tween themselves,  were  determined,  which  left  out  of  view  the 
paramount  title  of  the  government."7 

The  system  spread  throughout  the  West,  and  all  the  Western 
courts  in  the  early  days  followed  the  California  decisions  and 
adopted  them  in  their  first  cases.  In  Nevada,  for  example,  the 
early  court  said  it  felt  it  a  duty  to  follow  the  California  decisions;8 
and  in  an  early  Colorado  water  case  the  court  said:  "We  adopt 
the  rule  laid  down  by  the  courts  of  California  and  Nevada. ' ' 3 

In  the  following  passage  the  late  Judge  Hawley  describes  the  free 
and  unrestrained  occupation  of  the  public  domain  by  the  pioneers 
as  a  bit  of  his  own  biography.  Referring  to  early  Nevada  he  says : 
' '  The  first  settlements  were  made  in  the  valley  in  the  '  early  fifties, ' 
when  the  country  was  a  part  of  the  territory  of  Utah  and  subject 
to  its  laws.  The  settlements  were  made  by  persons  who  might  be 
denominated  as  'squatters'  on  the  public  land  of  the  United  States, 
without  any  title  thereto  save  such  as  the  custom  of  the  locality 
recognized,  or  in  some  few  instances  such  as  might  be  acquired 

8  The  doctrine  of  appropriation  of  7  Cave   v.   Tyler,   133   Cal.   566,   65 

water  upon  public  land  in  accordance       Pac.  1089. 

with   this    universal   custom     was   as-  0  -.«•  11  .  TT    i     a,,™   TIT    n~     t 

•i  j  ••  T        T   ,          -»«-T\IJ  8  Mallett  v.  Uncle   bam   M.  (Jo.,   1 

sailed  by  counsel  as  late  as  McDonald  ' 

v.  Bear  River  Co.,  13  Cal.  220,  1  Morr.  Nev-  188>  90  Am-  Dec-  484>  1  Morr- 

Min.  Rep.  626,  in  1859,  but  the  matter  Min.  Rep.   17. 

passed  unnoticed  by  the  court.     Yale  9  Sieber   v    Frink,    7   Colo.    148,   2 

on  Mining  Claims  and  Water  Rights,  p       qfll      „         ,       Murray  v    Timy- 

157.      In   Logan   v.   Driscoll,    19   Cal.  Fac'  yU1'      see'  als0'  * 

623,   81   Am    Dec.   90,   6   Morr.   Min.  fey,   20   Mont.   260,    50   Pae.   723,   19 

Rep.  172,  the  court  rebuked  counsel  for  Morr.  Min.  Rep.  137. 

disputing  it. 


§  85  Ch.  5.     HISTORICAL,— TO  THE  ACT  OF  1866.     (3d  ed.)     89 

under  the  various  provisions  of  the  laws  of  Utah.  They  raised  cat- 
tle, that  roamed  at  large,  and  in  many  places  they  cut  the  natural 
grasses  which  grew  at  that  time  in  great  abundance  all  over  the 
river  bottom."  And  he  says  that  they  would  "allow  their  cattle 
and  horses  to  roam  at  large,  or  picket  them  out  to  graze  upon  the 
natural  grasses  which  then  grew  of  sufficient  height  to  almost  hide 
the  stock  from  view,  and  was  as  free  and  open  to  all  comers  as  the 
air  that  wafted  its  gentle  breeze  through  the  valley  from  the  moun- 
tains, the  tops  of  which  were  covered  by  the  snow  that  had  fallen 
during  the  winter  season.  The  writer  of  this  opinion  was  one 
of  the  sojourners  who  made  that  trip  in  the  year  1852,  and  the 
reading  of  the  record  in  this  case  brings  to  his  mind  vivid  recollec- 
tions of  the  joy  and  hope,  courage  and  confidence,  inspired  in  the 
breast  of  every  pilgrim,  of  the  bright  future  which  he  then  thought 
awaited  him  when  he  reached  the  golden  regions  of  the  Eldorado 

of  the  West The  water  during  this  period  continued  to  flow 

into  various  sloughs,  and  spread  over  all  the  land  at  high  water. 
There  were,  as  a  general  rule,  no  specific  appropriations  made  of 

the  water Some  of  them  remained  but  a  short  period,  and 

voluntarily  left  and  abandoned  the  land,  free  to  the  occupancy  of 
the  next  comer  who  concluded  to  settle  thereon.  Others  traded  their 
rights,  whatever  they  were,  for  a  horse  or  wagon,  or  anything  of 
value,  no  matter  how  insignificant  it  might  be.  No  conveyances 
were  made.  One  party  would  leave;  the  other  party  would  come 
upon  the  land,  and  stay  until  he  got  ready  to  move  elsewhere. ' ' 10 

This  picture  of  early  Nevada  shows  a  more  irresponsible  and 
loose  condition  than  prevailed  in  the  California  mining  regions, 
however,  where  rights  were  of  high  value  and  zealously  guarded. 
In  time,  farmers  made  permanent  homes  everywhere,  and  valuable 
mining  claims  were  "located"  outside  of  California. 

This  Possessory  System  whereby  lands,  mines  and  waters  were 
claimed  by  ' '  prior  appropriation ' '  had  all  the  force  of  a  system  of 
law  governing  real  estate  all  over  the  West,  for  there  was  no  other 
land  law  of  consequence  upon  the  public  domain,  and  it  was  all 
public  domain. 

(3d  ed.) 

§  85.  Possessory  System  not  Confined  to  Mining. — The  Cali- 
fornia legislature,  while,  as  has  been  said,  providing  no  direct 

10  Union  Mining  Co.  v.  Dangberg,  81  Fed.  73. 


90     (3d  ed.)     Pt.  II.     CALIFOKNIA  -  COLORADO  DOCTEINES.  §  85 

legislation  concerning  waters,  by  its  early  mining  legislation  indi- 
rectly complicated  the  question.  The  lands  on  which  operations 
were  carried  on  belonged  to  the  United  States  and  were  not  at  the 
disposal  of  the  State.  But  the  State  legislature,  under  the  guise 
of  regulating  procedure  in  State  courts,  favored  the  miner  against 
others.  In  1852,  the  Possessory  Act  u  allowed  possessors  of  public 
lands  to  sue  in  State  courts,  for  interference  with  their  possession ; 
with  a  proviso  excepting  the  possessors  of  lands  for  agriculture  or 
grazing  from  protection  against  miners  if  the  land  contained  mines. 
This  was  supplemented  in  1855  by  the  Indemnity  Act,12  which 
required  the  miner  who  entered  upon  the  agriculturist  to  give  a 
bond  for  whatever  damages  might  follow  to  the  agriculturist's 
improvements. 

In  spite  of  this  favoritism  shown  to  the  miner  by  the  legislature, 
the  supreme  court  declared  its  purpose  as  far  as  possible  to  place 
all  pursuits  on  an  equal  footing.13  The  court  restricted  the  oper- 
ation of  the  statutes.  They  were  held  in  no  way  to  warrant  inter- 
ference of  any  kind  with  lands  owned  by  good  private  title  but 
only  applicable  to  public  lands.14  The  proviso  was  restricted  to 
such  public  lands  only  as  were  used  strictly  for  agriculture  or 
grazing  and  not  applied  to  lands  used  for  dwellings,  town  lots, 
sawmills,  etc.15  The  latter  two  cases  in  the  foregoing  note  held 
that  appropriations  of  water  to  run  a  sawmill,  being  prior  in  time, 
prevailed  against  later  appropriations  by  miners.  Even  in  strictly 
agricultural  uses  (in  regard  to  which  the  Indemnity  Act  required 
indemnity  only  where  crops  were  growing,  and  left  the  Possessory 
Act  unaffected  in  other  cases),  the  court  restricted  the  right  of  a 
miner  to  a  mere  right  of  entry,  without  the  right  to  destroy  any 
improvements  whatsoever  erected  by  the  agriculturist,  any  such  in- 
terference being  held  still  a  trespass ;  and  held  that  the  preference 
amounted  only  to  a  right  of  entry  on  land,  so  that  a  water-right  of 
an  agriculturist  was  protected  even  against  miners.16  The  final 

11  Stats.  1852,  p.  158.  Boggs  v.  Merced,  14  Gal.  279,  10  Morr. 

12  Act  of  April  25,   1855.  Min.  Eep.  334;  Smith  v.  Doe,  15  Cal. 

13  Tartar  v.   Spring  etc.   Min.   Co.,       100,  5  Morr.  Min.  Rep.  218. 

5  Cal.  395,  14  Morr.  Min.  Rep.  371;  15  Fitzgerald  v.  Urton,  5  Cal.  308, 

McDonald  v.   B.   R.   etc.   Co.,   13   Cal.  12    Morr.   Min.   Rep.    198;    Tartar   v. 

220,  1  Morr.  Min.  Rep.  626;  Wixon  v.  Spring   etc.   Mining   Co.,   5   Cal.    395, 

Bear  River  etc.   Co.,  24  Cal.   367,   85  14  Morr.   Min.   Rep.   371;   Ortman  v. 

Am.  Dec.  69,  1  Morr.  Min.  Rep.  656,  Dixon,  13  Cal.  33. 

and  many  other  cases;  Yale  on  Min-  16  Eogers  v.  Soggs,  22  Cal.  444,  14 

ing  Claims  and  Water  Rights,  p.  49.  Morr.    Min.    Rep.    375;    Levaroni    v. 

14  Tartar  v.  Spring  etc.  Mining  Co.,  Miller,  34  Cal.  231,  91  Am.  Dec.  692, 
5  Cal.  395,  14  Morr.  Min.  Rep.  371;  12  Morr.  Min.  Rep.  232. 


§  85  Ch.  5.     HISTOEICALr— TO  THE  ACT  OF  1866.     (3d  ed.)     91 

result  was  that  all  pursuits  were  treated  impartially  as  concerns 
waters.17  In  Rogers  v.  Soggs,18  the  court  says:  "Such,  in  general 
terms,  are  the  rights  of  the  miner;  but  these  rights  are  subject  to 
limitations  and  restrictions,  necessary  to  prevent  an  interference 
with  rights  of  property  vested  in  others,  and  which  are  entitled 
to  equal  protection  with  his  own.  Thus  he  has  no  right  to  use 
water  to  wo-rk  his  mine  which  has  been  appropriated  to  other 
legitimate  purposes.19  Nor  has  he  a  right  to  dig  a  ditch  to  convey 
water  to  his  mine  over  land  in  the  possession  of  another.20  Nor 
can  he  mine  land  used  for  a  residence  and  for  purposes  connected 
therewith.21  Or  land  used  for  houses,  orchards,  vineyards,  gardens 
and  the  like."  22  In  Montana,23  it  was  :n  a  very  early  case  i  trongly 
urged  that  the  doctrine  of  appropriation  applied  onlj  to  mining, 
and  could  not  be  extended  to  irrigation,  and  the  only  two  judges 
who  sat  being  divided  upon  the  matter,  it  passed  undecided  in  the 
case.  In  Atchison  v.  Peterson,24  the  supreme  court  of  the  United 
States  upheld  the  rule  as  applied  to  mining,  but  it  was  by  the 
decision  in  Basey  v.  Gallagher 25  that  it  was  established  in  that 
court  as  applying  to  irrigation  also. 

The  law  to-day  respecting  impartiality  in  uses  for  different  pur- 
poses (where  not  modified  by  statute)  is  stated  as  follows  in 
Natoma  etc.  Co.  v.  Hancock  l  (discussing  the  case  of  Rupley  v. 
Welch)  :2  "The  point,  and  the  only  point,  contended  for  by  the 
defendants  was  that  a  prior  appropriation  of  water  for  irrigation 
was  of  no  avail  against  a  subsequent  appropriation  for  mining. 
The  court  merely  decided  that  the  appropriation  for  irrigation  was 
good  against  miners  as  against  others,  and  that  the  defendants 
could  not  prevent  the  water  so  appropriated  from  flowing  into  the 

l'<  Yale     on     Mining     Claims     and  21  Citing    Fitzgerald    v.    Urton,    5 

Water  Rights,   139.  Cal.  308,  12  Morr.  Min.  Rep.  198. 

18  22  Cal.  444,  14  Morr.  Min.  Rep.  „„  n... Q    .,,        -p.        1(-  „,    ,m 

375.     Opinion     by     Crocker,     J.     For  _  ^^Cr?1111  *I |  %  ^m         ' 

appellant,  John  Garber.     For  respond-  LJ£S*-        T«  r ?fi«    J  J         l<- 

ent,  Searls  and   Niles   (both  later  on  g^^??011'  16  Cah  153'  2  M°rr'  Mm' 
the    supreme    bench).     Judgment    for 

appellant.  23  Thorp  v.  Freed,  1  Mont.  651. 

19  Citing   Irwin   v.   Phillips,   5   Cal.  24  87  U.  S.  507,  22  L.  Ed.  414,  1 
140,  63  Am.  Dec.  113,  15  Morr.  Min.      Morr.  Min    Rep    583 

Rep    178;  Tartar  v    The  Spring  Creek  ^  g7  u    g 

Water  etc    Co,  5  Cal.  395,  14  Morr.  M         m                 > 
Mm.  Rep.  371. 

20  Citing   Burdge  v.   Underwood,   6  *  101  Cal-  42,  at  55,  31   Pac.   112, 
Cal.    45,    4    Morr.    Min.    Rsp.    517;  35  Pac-  334- 

Weimer  v.  Lowery,  11  CaL  104,  4  2  23  CaL  453,  4  Morr.  Min.  Rep. 
Morr.  Min.  Rep.  543.  243. 


92     (3d  ed.)     Pt.  H.     CALIFOENIA  -  COLOEADO  DOCTRINES.  §  86 

reservoir  prepared  for  impounding  it.  This  is  a  doctrine  which, 
at  the  present  day,  no  one  disputes,  but  in  early  mining  times  the 
paramount  right  of  the  miner  was  strenuously  insisted  upon  by  the 
miners,  and  in  the  mining  sections  often  exercised  with  a  high 
hand,  as  it  was  by  the  defendants  in  Rupley  v.  Welch."3 

The  Possessory  Act  is  still  in  force  in  California.4  The  Indem- 
nity Act  was  held  unconstitutional,5  but  was  later  -upheld.8  No 
express  repeal  of  the  Indemnity  Act  appears,  but  it  is  probably 
superseded  by  the  Federal  statutes  concerning  public  lands  and 
mining. 

(3d  ed.) 

§  86.    Precarious  Status  of  Possessory  Rights  on  the  Approach 

of  the  Civil  War. — While  the  people  were  thus  taking  possession 
of  the  public  domain  for  all  purposes,  Congress  continued  silent. 
But  the  approach  of  the  Civil  War,  with  its  intense  feeling,  brought 
the  possessory  situation  to  a  focus.  The  matter  of  "Federal 
rights,"  into  which  the  Federal  government  itself  had  not  entered, 
now  became  prominent.  With  the  assertion  in  the  South  of 
11  State  rights"  threatening  the  Union,  loyal  leaders  in  California 
felt  that  to  uphold  Federal  rights  was  more  important  than  any- 
thing else. 

There  had,  in  the  years  following  1858,  been  an  attempt  on  the 
part  of  the  attorney  general  of  the  United  States  to  oust  certain 
miners  on  the  claim  that  the  minerals  belonged  to  the  United  States, 
in  litigation  which,  under  the  name  of  the  "Castillero"  litigation, 
aroused  much  excitement  in  California.  This  litigation  spread  over 
a  large  ground,  much  of  which  is  of  no  bearing  here,  such  as  the 
validity  of  a  certain  Mexican  grant  and  certain  alleged  fraudulent 

3  23   Cal.  453,  4  Morr.  Min.  Eep.  erty,    without    even    referring    to    or 
243.  citing  the  overruled  case  of  the  pre- 

4  Gray   v.   Dixon,   74   Cal.    508,   16  ceding  term,  by  answering  the  argu- 
Pac.  305.  ments  upon  which   it   is  based,   must 

5  Gillan  v.  Hutchinson,  16  Cal.  153,  be  regarded  as  a  wide  departure  from 
2  Morr.  Min.  Eep.  317.  the   revered   practice   of   their   prede- 

6  Eupley   v.  Welch,  23   Cal.  452,  4  cessors  in  the  science  of  jurisprudence 
Morr.   Min.   Eep.   243,   without   refer-  at   Westminster   Hall,   and   is  an   un- 
ring  to  the  former  decision,  of  which  worthy  example   to   their  humble   fol- 
Mr.    Yale    says:     "Such    practice    by  lowers  at  the  bar."     Yale  on  Mining 
the  American  judiciary,  if  it  be  ex-  Claims     and    Water    Eights,     p.     55, 
tensively    indulged    in,    of    overruling  commenting  upon   Gillan   v.   Hutchin- 
the  recent  decisions  of  the  same  court,  son,  16  Cal.   153,   2   Morr.   Min.   Eep. 
which    they   have    announced    as    law,  317,  and  Eupley  v.  Welch,  23  Cal.  452, 
involving    grave    constitutional    ques-  4  Morr.  Min.  Eep.  243. 

tions  upon  the  rights  of  private  prop- 


§  86  Ch.  5.     HISTORICAL— TO  THE  ACT  OF  1866.     (3d  ed.)     93 

conspiracies  on  the  part  of  high  Federal  officials.  Among  the  array 
of  counsel  were  Benjamin  R.  Curtis,  Judah  P.  Benjamin,  and  W. 
H.  Halleck.  But,  as  concerns  the  present  matter,  the  attorney 
general  of  the  United  States  stepped  into  litigation  begun  by  ad- 
verse private  claimants,  and,  on  the  contention  that  the  land  in- 
volved was  public  land,  secured  in  the  United  States  circuit  court 
in  California  an  injunction  against  the  working  of  the  mine,  and 
a  writ  was  issued  under  the  hand  of  President  Lincoln  for  the 
employment  of  the  military  to  remove  the  miners.7  "The  claim 
made  by  the  government  in  this  case  was  the  assertion  of  a  general 
principle,  namely,  the  right  to  restrain  the  working  of  all  mines 
upon  public  land,  and  could  have  been  made  to  apply  to  any  other 
mining  claim  in  the  State,  besides  the  Almaden."8 

It  was  likewise  about  this  time,  with  the  Civil  "War  facing  the 
country,  when  one  of  the  California  senators  (though  he  denied  it) 
was  reported  as  saying  ^hat  California  would  secede  with  the 
South,9  that  Judge  Field,  a  leader  of  the  loyalists  who  held  Cali- 
fornia to  the  Union,  affirmed  in  the  State  court,  where  he  was 
chief  justice,  in  most  emphatic  terms,  the  Federal  rights,  in 
Boggs  v.  Merced,10  decided  in  1859,  and  Moore  v.  Smaw,11  decided 
in  1861.  He  said  in  the  Boggs  case,  with  regard  to  mining  claims 
(and  his  position  applied  equally  to  ditch-owners  and  water  di- 
verters  and  most  other  property  claimants  in  the  Western  regions)  : 
"It  is  sometimes  said,  in  speaking  of  the  public  lands,  that  there  is 
a  general  license  from  the  United  States  to  work  the  mines  which 
these  lands  contain.  But  this  language,  though  it  has  found  its  way 
into  some  judicial  decisions,  is  inaccurate,  as  applied  to  the  action, 
or,  rather^  want  of  action,  of  the  government.  There  is  no  license 

in  the  legal  meaning  of  that  term The  most  which  can  be 

said  is  that  the  government  has  forborne  to  exercise  its  rights,  but 
this  forbearance  confers  no  positive  right  upon  the  miner,  which 
would  avail  as  a  protection  against  the  assertion  of  its  claims  to  the 
mineral.  The  supposed  license  from  the  general  government,  then, 
to  work  the  mines  in  the  public  lands,  consists  in  its  simple  forbear- 
ance. Any  other  license  rests  in  mere  assertion,  and  is  untrue  in 

T  United  States  v.  Parrott  (1858),  »  See  Bancroft's  History  of  Cali- 
1  McAll.  (C.'  C.)  271,  Fed.  Cas.  No.  fornia. 

i*a<  2    *  AT         XT-      -D        Qq*  10  14  Gal-  374,  10  Morr.  Min.  Rep. 

15,998,  7  Morr.  Mm.  Rep.  33o.  004 

8  Yale  on  Mining  Claims  and  ii  17  Cal.  199,  79  Am.  Dec.  123,  12 
Water  Rights,  p.  335.  Morr.  Min.  Rep.  418. 


94     (3ded.)     Pt.  II.     CALIFOKNIA  -  COLOEADO  DOCTRINES.  §87 

fact  and  unwarranted  in  law."  This  was  a  declaration  that  the 
western  population  were  wholly  without  rights  of  any  kind,  to 
water  or  to  anything  else.  It  made  him  unpopular,  and  his  de- 
cisions were  strenuously  attacked  as  below  noted.12 

(3d  ed.) 

§  87.  Revocation  of  Possessory  Rights  by  Federal  Patent. — 
The  same  matter  in  a  secondary  form  arose  regarding  water.  The 
lands  had  long  remained  (and  still  largely  remain)  unsurveyed, 
nor  was  there  any  efficient  statute  for  acquiring  the  formal  govern- 
ment title  to  land  until  the  Homestead  Act,  passed  in  1862,  and  the 
Pacific  Railway  Act,  passed  in  1864.  But  in  the  course  of  the  sixties, 
formal  land  patents  began  to  be  taken  out  under  these  Acts  covering 
the  land  containing  streams,  and  the  patentees  now  claimed,  as 
the  only  true  successors  of  the  United  States,  the  same  right  to 
oust  the  appropriators  that  had  come  to  be  claimed  for  the  United 
States  itself.  This  came  to  decision  in  *Nevada,  in  the  State  and 
Federal  courts,  in  the  cases  of  Van  Sickle  v.  Haines  and  Union 
Mining  Co.  v.  Ferris,  the  most  discussed  decisions,  in  the  seventies, 
in  the  Western  law  of  waters,  and  here  considered  by  anticipation.13 

These  decisions  dealt  with  the  question  what  the  law  was  prior 
to  any  statutes  'thereon  from  Congress;  and,  as  Congress  passed 
its  acts'  (below  referred  to)  only  in  1866  and  1870,  the  question 
really  was,  what  is  the  status  of  all  water  claims  whose  title  goes 
back  to  the  fifties  and  early  sixties  ?  The  subsequent  acts  of  Con- 
gress can  give  no  validity  to  such  claims;  they  must  stand  or  fall 

12  The  decision  was  affirmed  by  the  title,  had  made  trespassers,  against  a 
United  States  supreme  court  in  Min-  handful  of  great  landowners,  of  the 
ing  Co.  v.  Boggs,  70  U.  S.  304,  18  population  of  several  counties,  and  he 
L.  Ed.  245,  but  expressly  avoiding  a  was  attacked  in  the  California  news- 
consideration  of  the  doctrine  laid  papers  as  an  opponent  of  the  rights 
down  by  Judge  Field;  for,  as  here-  of  the  people.  As  to  the  nature  of  a 
after  quoted,  the  United  States  su-  Mexican  grant,  the  supreme  court  of 
preme  court  took  a  more  liberal  view  the  United  States  now  holds  contrary 
of  the  rights  of  the  pioneers,  as  did  to  these  rulings  of  Judge  Field.  See 
also  Judge  Field  when  a  member  of  Boquillas  etc.  Co.  v.  Curtis,  213  U.  S. 
that  court,  and  after  the  war  was  339,  29  Sup.  Ct.  Eep.  493,  and  Los 
over,  as  below  considered.  Angeles  Co.  v.  Los  Angeles,  217  U.  S. 

Boggs    v.    Merced    and    Moore    v.  217. 

Smaw   arose   out   of   Mexican   grants,  13  Van    Sickle    v.    Haines,    7    Nev. 

but    the    California    court    held    such  249,  15  Morr.  Min.  Kep.  201;   Union 

grants  equivalent  to  grants  from  the  Min.  Co.  v.  Ferris,  2  Saw.  176,  Fed. 

United   States,  which  is  the  way  the  Cas.   No.   14,371,   8   Morr.   Min.   Eep. 

public   land   questions   came   to    enter  90.     See,    also,    Thorp    v.    Freed,    1 

these  cases.     Field  further,  by  uphold-  Mont.  651,  Wade,  C.  J. ;  Ison  v.  Nel- 

ing  the  validity  of  the  private  Mari-  son  Min.  Co.,  47  Fed.  199. 
posa  grant  deraigned  under  Mexican 


§  87  Ch.  5.     HISTORICALr— TO  THE  ACT  OF  1866.     (3d  ed.)     95 

on  the  original  law.  What,  then,  was  the  original  law?  It  was, 
they  hold,  that  the  long  accumulation  of  rulings  that  had  been 
made  upholding  appropriation  of  water,  simply  settled  rights  be- 
tween trespassers  against  the  government's  paramount  title,  where- 
from  it  followed  that  all  appropriators  were  trespassers  against  a 
grantee  thereafter  of  that  paramount  title;  and  since  the  United 
States  could  have  ousted  all  as  trespassers,  all  could  be  ousted  just 
as  much  by  the  government's  patentee,  no  matter  how  long  the 
appropriators  had  already  been  diverting  the  stream  to  use,14  and 
even  though  it  would  mean  ruin  to  the  water  supply  of  towns, 
farms,  mines  and  other  enterprises  throughout  the  West.  Water 
users  were  told  that  the  appropriation  of  the  waters  of  streams  run- 
ning over  the  public  lands  could  never  become  complete  against  the 
United  States,  and  was  subject  to  be  revoked  and  abrogated  at  any 
time  by  the  United  States;  and  that  a  patent,  by  which  the  full 
legal  title  of  the  United  States,  with  all  of  its  incidents,  was  con- 
veyed to  the  patentee,  was  such  a  revocation,  and  necessarily 
clothed  such  patentee  with  all  rights, over  the  land  which  had  be- 
longed to  the  United  States  and  which  the  people  had  been  ille- 
gally enjoying.15  Judge  Garber,  concurring  in  the  Van  Sickle  case, 
said  that  the  result,  though  correct,  will  disappoint  expectations 

M  Prescription  not  running  against  water     therethrough;      and     no     one 

the  United  States.  could    lawfully    divert   it   against   his 

15  In  the  Van  Sickle  case,  the  consent."  Injunction  and  damages 
plaintiff  had  appropriated  and  di-  for  Haines  against  the  prior  appro- 
verted  a  stream  in  1857,  and  the  de-  priator  ordered,  reversing  the  lower 
fendant  later  in  1864,  by  a  patent  court. 

from  the  United  States,  without  any  In  the  Ferris  case  the  facts  were 
exception  or  reservation  in  the  patent,  substantially  the  same,  and  the  hold- 
acquired  the  riparian  land  on  which  ing  was  the  same,  adding  that,  until 
plaintiff's  point  of  diversion  lay.  the  act  of  1866,  a  sale  of  the  public 
The  defendant,  now  claiming  as  a  land  would  put  the  possessory  rights 
riparian  owner,  diverted  the  water  on  "at  the  mercy  of  the  buyer  of  the 
his  land  and  prevented  it  from  flow-  legal  title."  The  effect  of  the  act  of 
ing  to  the  plaintiff,  the  prior  appro-  1866  "appears  to  be  to  grant  to  the 
priator.  The  Nevada  court  said:  owner  of  possessory  rights  to  the  use 
"He  [the  appropriator]  could  acquire  of  water  under  the  local  customs,  laws 
no  right  against  the  United  States,  and  decisions,  the  absolute  right  to 
for  as  to  that  government  he  was  a  such  use,  which  the  government  alone 
trespasser."  Then,  after  saying  the  could  grant.  But  the  act  is  pros- 
patent  to  Haines  of  the  riparian  land  pective  in  its  operation,  and  cannot 
above  the  appropriator  passed  to  be  construed  as  to  devest  a  part  of  an 
Haines,  there  being  no  exception  in  estate  granted  before  its  passage." 
the  patent,  the  unencumbered  fee  of  And  held  that  patents  issued  berfore 
the  soil,  its  incidents  and  appur-  the  passage  of  the  act  of  1866  are  in 
tenances,  says:  "He  became  the  no  way  qualified  by  that  act,  passed 
owner  of  the  soil,  and  as  incident  subsequent  to  their  issue,  nor  in  any 
thereto,  had  the  right  to  the"  benefit  way  subordinated  to  prior  appropria- 
te be  derived  from  the  flow  of  the  tions  of  water. 


96     (3d  ed.)     Pt.  II.     CALIFORNIA  -  COLORADO  DOCTRINES.  §  88 

long  considered  by  the  public  as  well  founded.  (In  later  days,  as 
leader  of  the  bar  in  California,  he  did  his  best  to  discredit  this 
decision  in  which  he  had  reluctantly  concurred,  and  it  has  been 
said  that  the  decision  drove  Judge  Lewis,  who  wrote  the  opinion,  off 
the  bench).  It  was  ruled  in  the  Ferris  case  that  a  sale  by  the 
United  States  of  the  public  land  to  a  private  patentee  would  put 
the  pioneers'  water-rights  "at  the  mercy  of  the  buyer  of  the  legal 
title,"  resulting  in  the  entire  revocation  of  the  doctrine  of  prior 
appropriation.16  Field's  California  rulings  had  held  that  the 
pioneers  had  no  rights  whatsoever  against  the  United  States,  and 
these  Nevada  rulings  carried  that  to  the  sure  result  that  the  United 
States'  patentee  was  the  only  one  who  could  have  a  right  to  any- 
thing, because  he  alone  had  a  formal  grant  from  the  United  States, 
whether  the  property  involved  were  water,  or  a  right  of  way,  a 
ditch,  or  a  mine. 

So  great  was  the  popular  disapproval  and  the  reaction  against 
these  decisions,  that  most  of  the  younger  States  came  to  deny  any 
right  to  waters  in  any  landowner  as  such,  whether  it  be  the  United 
States  or  a  private  person ;  rejecting  thereby  any  Federal  title  to 
waters,  and  abrogating  in  ioto  the  common  law  of  riparian  rights, 
as  we  shall  have  occasion  to  see  hereafter.  But  we  continue  here 
to  follow  up  the  events  as  they  occurred. 


D.     THE  THEORY  OF  FREE  DEVELOPMENT  OF  THE  PUBLIC  LANDS 

UNDER  LOCAL  LAW. 
(3d  ed.) 

§  88.  Unpopularity  of  the  "Trespasser'-'  Basis  of  the  Pos- 
sessory System. — Judge  Field  was  attacked  in  the  California 
newspapers  for  the  foregoing  decisions  as  an  opponent  of  the  rights 
of  the  people,17  and  with  regard  to  the  Castillero  case  the  California 
legislature  in  1869  adopted  a  resolution  in  strong  terms  of  denun- 
ciation, declaring  that  to  make  the  rights  of  miners  dependent  upon 
the  "will  of  the  Federal  power"  would  be  "an  outrageous  viola- 
tion of  free  government,"  and  calling  upon  the  California  repre- 
sentatives in  Congress  to  secure  relief  from  these  decisions.18 

16  In  the  Montana  case  above  cited  18  The  resolution  is  in  Cal.  Laws  of 
(Thorp   v.   Freed,   1   Mont.   651)    the  1860,  p.  419,  too  long  to  give  here  in 
chief  justice   (though  no  decision  was  full.     It  is  also  printed  in  Yale  on  Min- 
reached  in  the  case)    not  only  recog-  ing  Claims  and  Water  Rights,  pages 
nized  such  as  its  result,  but  declared  346,  347.     It  declared  that  Congress 
it  to  be  a  desirable  result.  had  been  silent  as  to  the  matter  in 

17  Bancroft's  History  of  California,  order  "to  encourage  the  discovery,  en- 


§  89  Ch.  5.     HISTORICAL— TO  THE  ACT  OF  1866.     (3d  ed.)     97 

These  results  had,  from  the  first  California  days,  been  anticipated 
from  the  "trespasser"  doctrine,  as  had  also  the  result  that  posses- 
sory rights  would  fall  against  Federal  patent.  It  had  been  the 
endeavor  of  the  earlier  judges  to  anticipate  these  results  by  in 
some  way  connecting  the  pioneers  with  the  Federal  title,  thereby 
lifting  them  out  of  the  position  in  which  the  possessory  doctrine, 
in  its  legal  strictness,  placed  them. 

(3d  ed.) 

§  89.    The  Theory  of  a  Grant  With  the  Dignity  of  a  Fee. — 

We  must  at  this  point  look  baclr  again  to  the  earliest  California  de- 
cisions, before  Field's  rulings  and  before  the  Civil  War  threw  its 
shadow  upon  the  subject,  to  learn  the  theory  at  first  adopted  to  pro- 
tec,  the  pioneers.  They  had  admitted  the  title  of  the  United  States 
as  proprietor  of  the  ultimate  right  to  the  waters  as  well  as  the  whole 
region,  but  at  the  same  time  denied  the  contention  that  the 
pioneers  were  trespassers,  by  declaring  that  the  United  States  had, 
by  its  conduct  in  holding  out  the  public  domain  to  free  develop- 
ment, bound  itself  to  the  pioneers  as  fully  as  though  it  had  granted 
the  water  to  the  man  who  diverted  it,  was  bound  to  respect  the 
•diversion  for  all  time  because  it  had  encouraged  the  pioneers,  had 
recognized  their  acts,  and  thereby  tacitly  conferred  or  transferred 
to  the  pioneers  the  Federal  title  to  the  mines  and  to  the  waters 
actually  diverted — a  permanent  title  of  the  dignity  of  a  fee  and 
equal  to  subsequent  patent — equivalent  to  a  patent.  The  court  held 
that  an  appropriation  of  water  was  of  the  force  of  a  grant  from  the 
United  States,  such  that  the  government  itself  could  not  impair, 
that  no  later  t>atent  of  riparian  land  could  override,  and  to  which 
no  title  was  paramount. 

Irwin  v.  Phillips,19  the  original  precedent,  declared  that  by  its 
conduct  in  permitting  "free  and  unrestrained  occupation"  the 

joyment,  and  working  of  mines  by  the  of  this  State  were  held  by  the  people 
people,  wherein  consists  the  legitimate  at  the  will  of  the  federal  power";  that 
development  of  cur  great  source  of  the  the  injunction  to  stop  mining  in  the 
wealth  of  this  State" ;  that  local  regu-  Castillero  case  "has  been  productive 
lations  made  by  the  people  governed  of  great  injury  to  the  people  of  Cali- 
the  subject,  and  that  State  law  "pro-  fornia,  and  is  the  exercise  of  a  power 
tected  and  maintained  his  right  of  dangerous  to  the  general  mining  inter- 
property  in  his  mine";  that  "it  would  ests  of  the  State." 
be  a  great  grievance  and  an  outrageous  19  5  Cal.  140,  63  Am.  Dec.  113,  15 
violation  of  free  government,  if  the  Morr.  Min.  Rep.  178,  quoted  supra,  sec. 
right  of  property  in  the  mineral  lands  77. 
Water  Rights — 7 


98     (3d  ed.)     Pt.  II.     CALIFORNIA  -  COLOEADO  DOCTEINES.  §  89 

United  States  had  "conferred"  or  "recognized"  a  full  right  in 
the  appropriator  with  all  the  force  of  "res  judicata." 

In  Conger  v.  Weaver,20  Judge  Heydenfelt  said:  "Every  judge 
is  bound  to  know  the  history  and  the  leading  traits  which  enter 

into   the   history   of   the   country   where   he   presides We 

must,  therefore,  know  that  this  State  has  a  large  territory; 
that  upon  its  acquisition  by  the  United  States,  from  the  sparse- 
ness  of  its  population,  but  a  small  comparative  proportion  of 
its  land  had  been  granted  to  private  individuals;  that  the  great 
bulk  of  it  was  land  of  the  government;  that  but  little,  as  yet, 
has  been  acquired  by  individuals  by  purchase;  that  our  citizens 
have  gone  upon  the  public  lands  continuously,  from  a  period 
anterior  to  the  organization  of  the  State  government  to  the  present 
time;  upon  these  lands  they  have  dug  for  gold;  excavated  mineral 
rock;  constructed  ditches,  flumes  and  canals  for  conducting  water; 
built  mills  for  sawing  lumber  and  grinding  corn ;  established  farms 
for  cultivating  the  earth;  made  settlements  for  the  grazing  of  cat- 
tle ;  laid  off  towns  and  villages ;  felled  trees ;  diverted  watercourses ; 
and,  indeed,  have  done,  in  the  various  enterprises  of  life,  all  that 
is  usual  and  necessary  in  a  high  condition  of  civilized  development. 
All  of  these  are  open  and  notorious  facts,  charging  with  notice  of 
them  not  only  the  courts  who  have  to  apply  the  law  in  reference  to 
them,  but  also  the  government  of  the  United  States,  which  claims 
to  be  the  proprietor  of  these  lands;  and  the  government  of  the 
State,  within  whose  sovereign  jurisdiction  they  exist.  In  the  face 
of  these  notorious  facts  the  government  of  the  United  States  has 
not  attempted  to  assert  any  right  of  ownership  to  any  of  the  large 
body  of  lands  within  the  mineral  region  of  the  State.  The  State 
government  has  not  only  looked  on  quiescently  upon  this  universal 
appropriation  of  the  public  domain  for  all  of  these  purposes,  but 
has  studiously  encouraged  them  in  some  instances,  and  recognized 
them  in  all.  Now,  can  it  be  said,  with  any  propriety  of  reason  or 
common  sense,  that  the  parties  to  these  acts  acquired  no  rightsf 
If  they  have  acquired  rights,  these  rights  rest  upon  doctrine  of 
presumption  of  a  grant  of  right,  arising  either  from  the  tacit 
assent  of  the  sovereign,  or  from  expressions  of  her  will  in  the  course 
of  her  general  legislation,  and,  indeed,  from  both."  "A  license," 
the  court  added,  "to  everyone  who  chose  to  possess  himself  of  the 
franchise";  "a  positive  right  in  the  constructors  and  owners  of 

20  6  Cal.  548,  65  Am.  Dec.  528,  1  Morr.  Min.  Rep.  594. 


§  89  Ch.  5.     HISTORICALr— TO  THE  ACT  OF  1866.     (3d  ed.)     99 

these  works  to  hold  and  enjoy  them  as  property — a  vested  right 
which  cannot  be  taken  away.1'21 

Referring  to  this  opinion,  the  court  also  said  it  had  adopted 
the  theory  that  there  was  "a  general  license  to  all"  to  divert  the 
public  streams,  and  "when  these  ditches  have  been  constructed 
they  are  regarded  as  a  franchise  or  easement  belonging  to  the. 
proprietors."22  In  another  case:  "In  repeated  decisions  of  this 
court  it  has  been  uniformly  held  that  the  miners  were  in  posses- 
sion of  the  mineral  lands  under  a  license  from  both  the  State  and 
Federal  governments."23  In  another:  "They  are  there  by  the 
clear  license  of  both  governments,  and  have  such  a  title  as  will 
hardly  be  devested,  even  by  the  act  of  the  superior  proprietor. 
There  are  equitable  circumstances  connected  with  these  mining 
claims,  that  are  clearly  binding  upon  the  conscience  of  the  gov- 
ernmental proprietor,  that  this  court  must,  with  all  due  respect, 
presume  will  never  be  disregarded.  Rights  have  become  vested 
in  virtue  of  this  license,  that  cannot  be  devested  without  a  viola- 
tion of  the  principles  of  justice  and  reason."24 

Judge  Baldwin,  who,  as  counsel,  had  taken  part  in  the  original 
precedent  of  Irwin  v.  Phillips,25  laid  this  down  in  a  later  case,1 
when  he  said,  "We  hold  the  absolute  property  in  such  cases  to  pass 
by  appropriation  as  it  would  by  grant";  and  in  the  next  volume 
of  the  reports  he  laid  it  down  in  Merritt  v.  Judd  very  strongly 
with  regard  to  the  rights  of  the  pioneers  generally,  saying :  ' '  From 
an  early  period  of  our  State  jurisprudence,  we  have  regarded  these 
claims  to  public  mineral  lands,  as  titles.  They  are  so  practically. 
It  is  very  evident  that  the  government  will  not  change  its  policy 

21  See    infra,    sec.    556,    "executed  having  been  decided  by  a  majority  of 
parol  license,"  which  was  probably  the  the   court   against   my   own   opinion — 
idea  in  mind.  see    Conger    v.    Weaver,    October    2, 

22  Hill  v.  King,  8  Cal.  338,  4  Morr.  1856),   and   when   these   ditches   have 
Min.  Kep.  533.     "The  right  to  appro-  been    constructed,    they    are   regarded 
priate   the  waters   of   the   streams   of  as  a  franchise  or  easement  belonging 
this  State,  for  mining  and  other  pur-  to  the  proprietors,  and  are  entitled  to 
poses,    has    been   too   long   settled    to  protection    as    any    other    property." 
admit  of  any  doubt  or  discussion  at  Hall  v.  King,  8  Cal.  338,  4  Morr.  Min. 
this  time,"  saying  that  the  court  "based  Rep.  533. 

this    right    on    the    ground    that    the          23  Bear  River  etc.  Co.  v.  New  York 

legislation  of  the  State  has  given  to  etc.  Co.,  8  Cal.  327,  68  Am.  Dec.  325, 

everyone  not  only  a  privilege  to  work  4  Morr.  Min.  Rep.  526. 

the    'gold  placers,'    but  also  to  divert          24  Merced  M.  Co.  v.  Fremont,  7  Cal. 

the   streams   for   this   and   other  pur-  317,   327,  68   Am.   Dec.   262,   7   Morr. 

poses.     The   legislation    of   the    State  Min.  Rep.  313.     Italics  ours. 

has  been   held  to   amount  to   a   'gen-          25  5  Cal.  140,  63  Am.  Dec.  113,  15 

eral    license    to    all'    (whether    prop-  Morr.  Min.  Rep.   178. 

erly,  is  npt  fflr  me  to  say,  the  point          1  Ortman  v.   Dixon,   13   Cal.   33. 


100     (3d  ed.)     Pt.  EL     CALIFOENIA  -  COLOEADO  DOCTRINES.  §  89 

in  respect  to  them ;  that  they  will  not  be  sold,  nor  the  present  tenure 
altered.  [This  was  before  the  act  of  1866,  in  which  this  prophecy 
was  fulfilled.]  Our  courts  have  given  them  the  recognition  of 
legal  estates  of  freehold,  and  so,  to  all  practical  purposes, — if  we 
except  some  doctrine  of  abandonment,  not,  perhaps,  applicable  to 
such  estates, — unquestionably  they  are  and  we  think  it  would  not 
be  in  harmony  with  this  general  judicial  system  to  deny  to  them 
the  incidents  of  freehold  estates  in  respect  to  this  matter.  If 
to  decide  thus  be  a  departure  from  some  technical  rules  of  law 
[the  title  of  the  United  States  being  regarded  as  merely  technical], 
it  is  but  following  other  rules,  which  hold  that  a  system  of  deci- 
sions, long  established  and  long  acted  upon,  shall  not  be  departed 
from  when  important  rights  have  vested  under  it,  merely  because 
the  reasons  upon  which  it  rests  might  not,  in  the  judgment  of  sub- 
sequent judges,  be  considered  sound."2 

And,  finally,  in  the  case  of  Lux  v.  Haggin : 3  "  The  law  of  Cali- 
fornia, with  reference  to  priority  of  possession  on  the  public  lands, 
has  been  so  long  established  that  we  are  apt  to  forget  the  whole 
system  was  built  upon  a  presumption  entertained  by  the  courts  of 
a  permission  from  the  United  States  to  occupy."4 

Accordingly,  in  practice,  the  attributes  of  freehold  realty  were 
enforced.  Ejectment  was  allowed  for  mining  claims,  and  justices 

2  Merritt   v.    Judd,    14   Cal.    64,    6       are  to-day  said  to  "belong  to  the  pub- 
Morr.   Min.   Rep.   62.     (Italics   ours).      lie"),  and  open  to  the  first  appropria- 
This  case  is  in  the  same  volume  of  re-       tor. 

ports  as  Biddle  Boggs  v.  Merced  *  Regarding  the  attitude  of  the  peo- 
Mining  Co.,  in  which  Judge  Field  had,  pie  to  this  effect  from  the  earliest 
as  heretofore  quoted  (Supra,  sec.  days,  it  may  be  noted  that  Colonel 
S6),  so  positively  laid  down  the  Mason,  in  1849,  had  thought  of  put- 
"trespasser"  doctrine,  saying  that  the  ting  out  the  miners,  but  he  said: 
"freehold"  theory  was  mere  assertion,  "Upon  considering  the  large  extent 
untrue  in  fact  and  unwarranted  in  of  the  country,  the  character  of  the 
law.  It  is  consequently  interesting  to  people  engaged,  and  the  small,  scat- 
note  that  Judge  Field  did  not  sit  in  tered  force  at  my  command,  I  am  re- 
Merritt  v.  Judd  because  he  was  ab-  solved  not  to  interfere,  but  to  permit 
sent  from  the  State,  while  Judge  all  to  worlc  freely',  unless  broils  and 
Baldwin  did  not  sit  in  Boggs  v.  crimes  should  call  for  'interference." 
Merced  Co.  because  he  had  been  coun-  Costigan  on  Mining  Law,  p.  3.  And 
,sel  in  the  case.  As  will  appear  here-  thus  left  to  worlc  freely,  "they  pro- 
after,  Judge  Field  later  gave  up  hia  ceeded  upon  the  theory  that  the  pub- 
support  of  the  trespasser  theory,  and  lie  domain  belonged  to  the  people; 
when  on  the  bench  of  the  supreme  that  the  mineral  therein  was  the  sub- 
court  of  the  United  States  did  more  ject  of  free  private  acquisition,  as  a 
than  anyone  else  to  support  the  full  reward  for  discovery  and  occupation; 
vested  character  of  the  rights  of  the  and  thus  defied,  in  effect,  the  settled 
pioneers.  traditions  and  laws  of  other  countries, 

3  69  Cal.  255,  10  Pac.  674.     In  Mor-  and  the  right  of  the  United  States  as 
ion  v.  Solambo  Min.  Co.,  26  Cal.  527,  a  government  to  the  mineral  contained 
4   Morr.   Min.   Rep.   463,   mines   were  in    its    land."     Costigan    on    Mining 
said  to  be  publici  juris  (just  as  waters  Law,  p.  8. 


§  90  Ch.  5.     HISTORICAL— TO  THE  ACT  OF  1866.     (3d  ed.)     101 

of  the  peace  had  no  jurisdiction,  and  probably  dower  was  enforced,5 
and  the  usual  law  of  fixtures  was  held  to  apply,6  and  the  claims 
were  such  property  as  to  have  jurisdictional  value,7  and  usually 
conveyances  had  to  be  in  writing;8  although  on  all  these  and  many 
other  points  the  reverse  would  be  true  if  Field's  ruling  had  been 
enforced  logically  and  if  the  pioneers  had  been  treated  as  mere 
trespassers  (and,  indeed,  in  some  of  these  points  the  freehold  theory 
had  difficulty  in  making  its  way).9 

(3d  ed.) 

§  90.     Same. — The   freehold  theory  is  set  forth  in   cases  of 

other  Western  courts.  Thus,  in  an  Oregon  case:10  "The  right  of 
mining  for  the  precious  metals  is  a  franchise,  and  the  attendant 
circumstances  raise  the  presumption  of  a  general  grant  from  the 
sovereign  of  the  privilege.  Accepting  this  as  a  postulate,  it  fol- 
lows that  the  general  government  itself  could  not  equitably  inter- 
fere with  or  abridge  the  .rights  of  the  miner. ' '  In  Nevada  the 
court  in  the  first  volume  of  its  reports  said :  ' '  So  far,  then,  as  the 
anomalous  rights  and  character  of  the  miner  locating  upon  the 
public  land  for  the  purpose  of  mining  are  defined  and  established 
by  the  courts  of  California,  we  feel  it  our  duty  to  recognize  them 

whenever  their  decisions  may  be  applicable  to  our  condition 

To  repudiate  the  theory  and  principles  upon  which  they  have  acted 
would  be  to  overturn  the  foundation  upon  which  half  our  rights 
rest."11 

Before  the  law  was  finally  settled  this  way  in  the  act  of  1866  as 
below  set  forth,  the  supreme  court  of  the  United  States  in  general 
terms  encouraged  the  stand  taken.  In  one  case,  for  example,  it 
said  that  mining  claims  on  the  public  land  existed  under  the  implied 
sanction  of  the  national  government,  for  "we  cannot  shut  our  eyes 
to  the  public  history,"12  and  other  expressions  by  the  supreme 
court  of  the  United  States  to  the  same  effect  are  hereafter  quoted. 

5  See  Lindley  on  Mines,  and  Yale  10  Gold  Hill  Co.  v.  Ish,  5  Or.  104, 
on  Mining  Claims  and  Water  Rights,       11  Morr.  Min.  Rep.  635. 

1'or  mining  decisions.  u  Lewis,  C.  J.,  in  Mallett  v.  Uncle 

6  Merritt    v.    Judd,    14   Cal.    64,    6  Sam   Min.   Co.,   1   Nev.   188,   90   Am. 
Morr.  Min.  Rep.  62.  Dec.  484,  1  Morr.  Min.  Rep.  17. 

7  Sparrow   v.   Strong,   3   Wall.    (70  12  Sparrow  v.   Strong,  3  Wall.    (70 
U.  S.)  104,  18  L.  Ed.  50,  2  Morr.  Min.  U.  S.)  104,  18  L.  Ed.  50,  2  Morr.  Min. 
Bep.  320.  Rep.    320.     Field's    denial   of   this   in 

8  Infra,  sec.  542.  Boggs    v.    Merced    Mining    Co.,    the 

9  See,    especially,    infra,    sec.    555,  supreme   court   of   the   United    States 
Parol  Sale.  had   avoided   passing   upon   when  'the 


102     (3ded.)   -Pt.H.     CALIFORNIA  -  COLORADO  DOCTRINES.  §91 

(3d  ed.) 

§  91.  "Excepting  the  Government." — The  freehold  theory 
continued  to  rule,  and,  as  Congress  -continued  unheard  from,  its 
opponents,  although  retaining  the  "trespasser"  doctrine,  acknowl- 
edged (as  Field  had  in  Boggs  v.  Merced)  that  such  must  be  ac- 
cepted in  practice.  They  reserved  their  technical  position  by 
"excepting  the  government,"  but  admitted  the  pioneers'  rights 
to  be  freehold  rights  against  all  the  world  "except  the  gov- 
ernment." The  phrase  "except  the  government"  came  to  be  much 
used.13 

Whether,  before  the  act  of  1866,  the  appropriator's  title  against 
the  government  01-  its  patentees  be  called  legal  under  a  grant,  as 
Conger  v.  Weaver  presumed  and  Merritt  v.  Judd  declared  at  law, 
or  equitable  from  conduct  as  the  mining  cases  seem  to  say,  yet  it 
would  seem  but  a  matter  of  names.  Without  congressional  action, 
interests  in  the  public  domain  could  not  pass  out  of  the  United 
States  so  as  to  be  enforced  in  a  court  of  equity  more  than  in  one 
of  law,  and  either  in  law  or  equity  Judge  Field's  words  are  equally 
applicable:  "The  supposed  license  from. the  general  government, 
then,  to  work  the  mines  in  the  public  lands,  consists  in  its  simple 
forbearance.  Any  other  license  rests  in  mere  assertion,  and  is 
untrue  in  fact  and  unwarranted  in  law."14  The  appropriators' 
rights  in  this  respect  rested  wholly  on  moral  grounds;  it  was  a 
political  matter  forced  upon  the  judges;  the  exigencies  required 

Boggs  case  came  before  it  on  appeal.  Kidd  v.  Laird,  15  Cal.  161,  at  181, 

See  supra,  sec.  86.  76  Am.  Dec.  472,  4  Morr.  Min.  Rep. 

In  Sparrow  v.  Strong  the  eonten-  571.  See,  also,  Hughes  v.  Devlin,  23 
tion  was  that  the  possessory  rights  Cal.  501,  12  Morr.  Min.  Rep.  241; 
had  no  value,  being  in  fact  no  right  at  Spencer  v.  Winselman,  42  Cal.  479,  2 
all,  and  hence  the  jurisdictional  value  Morr.  Min.  Rep.  334;  Buchner  v.  Mai- 
was  lacking;  but  the  court  held  other-  loy  (1909),  155  Cal.  253, 100  Pac.  687; 
wise.  Miller  v.  Imperial  Water  Co.  (1909), 

13  For   example,   after   saying   that  156  Cal.  27,  103  Pae.  227,  24  L.  R.  A., 

the  United  States  is  the  riparian  pro-  N.  S.,  372;  Lindley  or>  Mines,  2d  ed., 

prietor,     and     after     "excepting     the  sec.  642,  p.  1196. 

government,"    one   case   says:     "Upon  14  Biddle  Boggs  v.  Merced  Mining 

this    subject   it   is   only   necessary    to  Co.,  14  Cal.  375,  10  Morr.  Min.  Rep. 

consider  that   none   of   the  rights   in-  334.     "That  there  was  an  implied  li- 

volved  in  this  controversy  are  founded  cense   from   the   government   to   mine 

upon  a  legal  title,  and  that  the  safety  for  the  precious  metals  upon  the  pub- 

and    security    of    the    parties    require  lie  land,  by  reason  of  its  indulgence, 

that   the  rights   of  each,   as   fixed   by  if   not   the   direct   encouragement   ex- 

the   priority  and   extent   of   their   re-  tended   to   the   mining  population,   as 

spective  appropriations,  should  be  re-  claimed    by    every    miner,    has    been 

garded  as  perfect  and  absolute  as  if  expressly    denied   by   judicial   author- 

they  had  been   acquired   by   prescrip-  ity."     Yale    on    Mining    Claims    and 

tioa,   or  were   held  under  an  express  Water  Rights,  pp.  332,  333. 
grant     from     the     riparian     owner." 


§  92  Ch.  5.     HISTORICAL— TO  THE  ACT  OF  1866.     (3d  ed.)     103 

them  to  formulate  a  theory  that  would  give  permanent  stability  to 
the  pioneers'  claims,  Congress  failing  to  do  so,  or  to  act  one  way 
or  the  other.  ''Tradition  and  the  habits  of  the  community  count 
for  more  than  logic";15  and  the  fact  is  that  the  pioneers'  rights 
came  to  be  treated  and  acted  upon  as  actual  freehold  rights  in 
practice,  and  the  phrase  "excepting  the  government'"  remained  (as 
to  waters,  at  least)  a  mere  formula  of  words  without  practical  force, 
however  sound  it  might  have  been  in  technical  theory. 


E.     THE  ACT  OF  1866. 

(3d  ed.) 

§  92.  It  may  be  well,  for  the  sake  of  clearness,  and  because  of 
the  importance  to-day  of  questions  arising  out  of  the  act  of  1866, 
to  recapitulate  briefly  the  ground  just  covered,  which  led  up  to 
that  act. 

• 

In  the  development  of  the  law  from  the  discovery  of  gold  in 
1848,  mines  and  waters  were  governed  by  the  same  general  law  and 
decisions;  there  was  no  distinction  made  between  the  mining  and 
the  water  questions.  So  far  as  there  was  any  written  law  at  the 
beginning,  it  was  that  the  pioneers  were  trespassers  upon  the  public 
lands  of  the  United  States.  But  the  courts,  in  seeking  to  protect 
the  pioneers  and  to  give  effect  and  recognition  to  the  local  laws 
and  customs  governing  mining  and  the  appropriation  of  water, 
held  that  although  the  ultimate  title  to  the  land  was  in  the  United 
States,  yet,  Congress  having  made  no  regulations  governing  the 
subject,  the  miners  had  a  presumptive  title  to  mines  on  the  public 
domain  and  to  water  diverted  and  appropriated  thereon.  It  was 
held  to  be  the  policy  of  the  State  to  encourage  the  working  of  mines 
and  the  diversion  of  the. streams  for  beneficial  use  in  accordance 
with  local  law,  under  a  presumptive  license  from  the  United  States 
to  do  so;  and  because  the  United  States  stood  silently  by  during 
this  universal  appropriation  of  the  public  domain,  and  because  the 
property  rights  of  almost  the  whole  Western  region  had  thus  arisen, 
the  State  courts  declared  that  this  license,  based  upon  the  encour- 
agement of  Federal  silence,  amounted  to  a  grant  in  fee  to  the  ap- 
propriator  when  acted  upon,  equally  as  to  mines  and  waters  and 
ditches.  The  pioneers'  rights  were  declared  positive,  vested  rights 
by  grant  from  the  United  States,  which  could  not  be  devested. 

15  Mr.  Justice  Holmes  in  Laurel  San  Francisco  (1910),  216  U.  S.  358, 
Hill  Cemetery  v.  City  and  County  of  30  Sup.  Ct.  Eep.  301,  54  L.  Ed.  515. 


104     (3d  ed.)     Pt.  H.     CALIFORNIA  -  COLORADO  DOCTRINES.  §  93 

This  was  the  popularly  accepted  law  up  to  1859,  when,  at  the  ap- 
proach of  the  Civil  War,  the  protection  of  Federal  rights  became 
a  paramount  question;  and,  in  the  Castillero  case,  and  in  opinions 
of  the  California  court  rendered  by  Judge  Field,  the  foregoing 
decisions  and  contentions  were  denied;  the  pioneers  were  held  but 
trespassers  upon  the  public  lands.  Though  recognizing  the  previ- 
ous rulings  to  the  extent  of  holding  the  pioneers'  rights  properly 
treated  as  vested  freehold  interests  as  between  themselves,  and 
against  everyone  "except  the  government,"  yet  against  the  gov- 
ernment or  its  patentees  the  pioneers'  rights  were  held  to  be  no 
rights  at  all.  Thus,  at  the  opening  of  the  Civil  War,  the  courts 
were  holding  that  the  rights  in  realty  of  the  greater  part  of  the 
Western  population  were  wholly  revocable  by  Federal  action.  Con- 
gress might  expressly  revoke  them,  or  they  would  impliedly  be 
revoked  as  to  waters  when  the  United  States  issued  patents  to  the 
lands  over  which  the  waters  flowed,  or  through  which  the  ditches 
ran.  The  prospect  of  either  of  these  results  made  the  decisions 
announcing  them  intensely  unpopular  in  the  West.  The  California 
legislature  denounced  them  in  strong  terms,  and  called  upon  the 
California  representatives  in  Congress  to  seek  redress  by  congres- 
sional action.  But  while  the  Civil  War  was  in  progress,  the  matter 
lay  dormant. 

(3d  ed.) 

§  93.  Congress  and  the  Public  Domain. — The  California  legis- 
lature had,  as  already  quoted  in  connection  with  the  Castillero 
case,  called  upon  Congress  in  forcible  terms  to  declare  the  freedom 
of  the  mines,  and  in  the  same  year  (1860)  Senator  Gwinn,  of  Cali- 
fornia, had  introduced  in  Congress  an  equally  emphatic  proposi- 
tion, to  wit:  "That  it  shall  be  lawful  for  any  citizen  of  the  United 
States,  or  for  any  person  who  may  have  declared  his  intention 
to  become  a  citizen  of  the  United  States,  who  shall  be  an  actual 
settler,  to  enter  upon  and  remain  on  any  public  land  of  the  United 
States  containing  minerals  not  specially  reserved  for  public  uses, 
within  the  States  of  California  and  Oregon,  and  to  work  the 
mines  on  the  said  lands  for  their  own  use  and  benefit,  according 
to  the  laws  and  usages  of  the  said  States  respectively,  and  no 
person  who  has  heretofore  worked  the  said  mines  on  said  lands 
for  their  own  use  and  benefit  shall  be  regarded  as  a  trespasser 


§93  Ch.  5.     HISTOBICAL— TO  THE  ACT  OF  1866.     (3d  ed.)     105 

against  the  United  States."  But  he  was  voted  down.16  In  the 
meantime  the  Homestead  Act  got  passed,  however  (1862),  holding 
open  the  agricultural  lands  to  free  acquisition  by  settlers.17 

The  Civil  War  came  to  a  close  in  1865.  There  was  then  intro- 
duced in  Congress,  to  pay  off  the  war  debt,  at  the  request  of  the 
Secretary  of  the  Treasury,  a  bill  to  withdraw  the  mines  from  the 
miners,  fix  a  price  and  sell  them,  with  a  royalty  to  the  United 
States  after  the  sale.  The  Secretary  believed  it  would  yield 
a  large  revenue.  Great  discoveries  at  the  Comstock  mines  in 
Nevada  had  recently  attracted  the  world's  attention.  The  fol- 
lowing statement,  somewhat  exaggerated,  perhaps,  was  communi- 
cated from  Washington  by  one  of  the  editors  of  the  San  Francisco 
"Alta  California,"  and  published  in  that  newspaper  May  17,  1867. 
Senator  Stewart  declared  it  to  be  substantially  correct,  and  it  is 
quoted  by  Yale:18  "The  miners  of  California  and  the  States  and 
Territories  adjacent  thereto  have  but  a  very  inadequate  idea  of 
the  imminent  peril  in  which  the  pursuit  in  which  they  are  engaged 
was  placed  at  the  commencement  of  the  Thirty-ninth  Congress. 
Two  years  ago  there  was  a  strong  disposition  in  Congress  and  the 
East  generally  to  make  such  a  disposition  of  the  mines  as  would 
pay  the  national  debt.  The  idea  of  relieving  the  nation  of  the  pay- 
ment of  the  enormous  taxes  which  the  war  has  saddled  upon  us 
by  the  sale  of  the  mines  in  the  far  distant  Pacific  slope,  about  which 
few  people  here  have  any  knowledge  whatever,  was  the  most  pop- 
ular that  was  perhaps  ever  started — compelling  other  people  to 
liquidate  your  obligations,  has  been  in  all  ages  and  in  all  nations 
a  highly  comfortable  and  popular  proceeding.  There  were  some 
at  the  time  of  which.  I  write  who  would  not  be  satisfied  with  the 
sale  of  the  mines.  They  held  that  even  after  the  sale  the  govern- 
ment should  be  made  a  sharer  in  the  proceeds  realized  from  them. 

16  Yale     on     Mining     Claims     and  the  United  States;  but  each  case  shall 
Water  Eights,  p.  347.  be    adjudged    by    the    law   of   posses- 

17  The     first     Federal     legislation  sion."     13    Stats.    441.     While   assert- 
upon  the  rights   of  the  pioneers   was  ing  the  Federal  title,  this  had  also  the 
a  proviso  in  an  act  of  1865  concern-  effect    of    asserting   that    the   miners' 
ing  Federal  courts  in  Nevada,  saying:  possession   was   equivalent   to   a   free- 
"That   no    possessory   action   between  hold  title.     It  was  hence  neutral,  and 
individuals  in  any  of  the  courts  of  the  had  little  effect  upon  the  theories  in- 
United  States  for  the  recovery  of  any  volved,  being  overshadowed  by  the  act 
mining  title,   or  for  damages  to  any  of  1866. 

such   title,    shall   be   affected   by   the          is  Yale     on     Mining     Claims     and 
fact  that  the  paramount  title  to  the      Water  Eights,  p.  10. 
lands  on  which  such  mines  are,  is  in 


106     (3d  ed.)     Pt.  II.     CALIFORNIA  -  COLORADO  DOCTRINES. 


§93 


The  first  bill  on  the  subject  was  introduced  in  the  Senate  by  Mr. 
Sherman,  of  Ohio,  and  in  the  House"  by  Mr.  .Julian  of  Indiana." 
Such  is  the  way  it  was  put  in  the  newspapers  of  the  day.  The  part 
quoted  is  mild  compared  with  the  way  it  continued.  These  and 
similar  things  we  quote  without  reference  to  our  own  day,  but  to 
reflect  the  thought  of  those  days  which  culminated  in  the  act  of 
1866. 

Senator  Stewart  of  Nevada  became  the  leader  of  Western  mem- 
bers, and,  to  prevent  such  action  (and  not  of  his  own  initiative), 
introduced  a  counter-bill  to  confirm  the  rights  of  the  miners  and 
appropriators  upon  lines  similar  to  those  previously  attempted  by 
Mr.  Gwinn,  so  that  their  rights  should  no  longer  be  denied  them 
as  trespassers.  In  the  Senate,  Mr.  Stewart  spoke  with  great  effect.19 
The  question  of  royalty  was  extensively  argued.  Those  who  had 
favored  it  changed  their  position  as  the  debate  proceeded,  and 
opinion  became  generally  opposed  to  it.20 

Stewart's  cotinter-bill  passed  in  the  Senate,  but  was  held  in 
the  public  lands  committee  of  the  House.21  A  bill  relating  only  to 


19  His   speech   is   referred   to   with 
high  approval  by  Judge  Field  in  Jen- 
nison  v.  Kirk,  infra. 

20  Debates  had  been  had  in  previous 
years  in  which  "the  system  of  land- 
lord and  tenancy  between  the  nation 
and    its    citizens    was    strongly    con- 
demned   in    principle    and    policy,    as 
inconsistent  with  the  duty  of  a  gov- 
ernment in  the  encouragement  and  re- 
ward of  industry  to  individuals,  and 
as  fallacious  in  all  theories  aiming  at 
remunerative  returns."     Yale  on  Min- 
ing Claims  and  Water  Rights,  p.  342. 
See  the  last  paragraph  of  Moore  v. 
Smaw,  17  Cal.  199,  at  226. 

21  The  difficulty  in  passing  the  act 
rested    upon    several    grounds.     Yale 
ascribes  it  to  the  advocates  of  a  ten- 
ancy    and     royalty.     An     additional 
cause,  however,  was  the  Sutro  Tunnel 
Act,  an  incident  in  the  history  of  the 
Comstock   mines   in   Nevada.     It   was 
the    fame    of   these    great    mines,    as 
much    as    the    California   mines,    that 
brought  the  question  of  mining  rights 
to   the    front    of   public   notice.     The 
act  of  1866  was  specially  intended  to 
give   stability   to    Comstock   titles   by 
issuance  of  mining  patents.    At  the 
same   time   an   act  was  being  consid- 
ered in  Congress  in  aid  of  the  Sutro 


Tunnel  Project  to  pierce  the  mountain 
in  which  the  Comstock  mines  lay,  by 
a  tunnel  primarily  for  drainage  pur- 
poses, the  bill  granting  to  the  tunnel 
company  all  ore  bodies  it  might  cut 
in  its  tunnel,  not  already  discovered 
on  the  surface.  The  Sutro  Tunnel 
advocates  feared  that  Senator  Stew- 
art's bill  would  legalize  surface  claims 
to  their  disadvantage  if  passed  first, 
and  hence  held  up  his  bill  until  the 
day  after  the  tunnel  bill  went  through. 
(It  is  interesting  to  note  that  the 
Sutro  Tunnel  was  found  almost  wholly 
barren  when  completed.)  Still  another 
source  of  difficulty  was  that  Senator 
Williams,  of  Oregon,  while  approving 
the  general  purpose  of  the  act  and  the 
clauses  which  concern  us  here,  was 
nevertheless  opposed  to  the  other 
clauses  relating  to  the  issuance  of  min- 
ing patents,  fearing  that  they  were  im- 
practical and  in  the  interests  of  specu- 
lators. 

I  have  examined  the  Congressional 
Globe  upon  these  matters.  (Cong. 
Globe,  vol.  1865-66,  p.  3952,  etc.) 
The  royalty  feature  urged  by  Sher- 
man was  withdrawn  by  him,  and  he 
^eventually  supported  the  act  on  the 
ground  that  it  was  better  to  have  the 
region  developed  than  to  tax  it  at 


§  94  Ch.  5.     HISTORICAL— TO  THE  ACT  OF  1866.     (3d  ed.)     107 

ditches  and  water-rights  was  reported  to  the  House  from  another 
committee  and  passed.  In  the  Senate,  thereupon,  the  Western 
members  secured  the  substitution  of  the  entire  original  bill  cover- 
ing both  mines  and  waters;  and  in  this  way  the  House  committee 
on  public  lands  was  evaded,  and  the  entire  bill  eventually  passed 
in  the  form  in  which  originally  passed  by  the  Senate.  The  title 
of  the  House  bill  for  which  it  was  substituted  had  to  be  retained, 
however.  In  this  way  while  primarily  a  mining  bill,  it  is  entitled, 
"An  act  granting  the  right  of  way  to  ditch  and  canal  owners 
through  the  public  lands,  and  for  other  purposes."22 

(3d  ed.) 

§  94.     The  Act  of  1866. — The  act  applied  mostly  to  mining,  in 

which  respect  it  was  crude  and  was  repealed  for  a  more  detailed 
act  in  1872 23  along  the  same  lines.  But  the  section  referring  to 
water-rights  was  preserved  in  the  Revised  Statutes,  and  has  re- 
mained unchanged  to  the  present  day. 

Section  1  of  the  act  as  originally  enacted  provided:  "Be  it  en- 
acted that  the  mineral  lands  of  the  public  domain,  both  surveyed 
and  unsurveyed,  are  hereby  declared  to  be  free  and  open  to  ex- 
ploration and  occupation  by  all  citizens  of  the  United  States,  and 
those  who  have  declared  their  intention  to  become  citizens,  subject 
to  such  regulations  as  may  be  prescribed  by  law,  and  subject  also 
to  the  local  customs  or  rules  of  miners  in  the  several  mining  dis- 
tricts, so  far  as  the  same  may  not  be  in  conflict  with  the  laws  of 
the  United  States."24  Then  followed  some  provisions  for  issuance 
of  mining  patents. 

The  section  (section  9)  referring  to  waters  and  remaining  now 
in  force  is  contained  in  section  2339  of  the  Revised  Statutes :  . 

Revised  Statutes,  section  2339 :  ' '  Whenever,  by  priority  of  pos- 
session, rights  to  the  use  of  water  for  mining,  agricultural,  manu- 
facturing or  other  purposes,  have  vested  and  accrued,  and  the  same 

expense   of   development;    while   Will-  laws,  but  simply  give  uniformity  and 

iams  expressed  strong  approval  of  the  consistency  to  the  whole  system.     The 

bill  if  the  patent  feature  were  omit-  escape    from    entire    confiscation    w"as 

ted,  and   hence  approval  of  the  only  much  more  narrow  than  the  good  peo- 

clauses  which  concern  us  here.  pie     of     California     ever     supposed." 

22  Mr.   Yale   says:     "The   result  of  Yale    on    Mining    Claims    and    Water 

the  whole  fight  is  the  grant  of  all  the  Eights,  p.  12. 

mines  to  the  miners,  with  some  whole-          23  Act   of  1872^   17   Stats.,  c.  152, 

some  regulations  as  to  the  manner  of  p.  9. 
holding  and  working  them,  which  are          24  Italics  ours, 
not  in   conflict  with   existing   mining 


108     (3d  ed.)     Pt.  II.     CALIFORNIA  -  COLORADO  DOCTRINES.  §  95 

are  recognized  and  acknowledged  by  the  local  customs,  laws  and 
decisions  of  courts,  the  possessors  and  owners  of  such  vested  rights 
shall  be  maintained  and  protected  in  the  same;  and  the  right  of 
way  for  the  construction  of  .ditches  and  canals  for  the  purposes 
herein  specified  is  acknowledged  and  confirmed;  but  whenever  any 
person,  in  the  construction  of  any  ditch  or  canal,  injures  or  dam- 
ages the  possession  of  any  settler  on  the  public  domain,  the  party 
committing  such  injury  or  damage  shall  be  liable  to  the  party  in- 
jured for  such  injury  or  damage."25 

In  the  placer  mining  law  of  1870  (the  act  o'f  1866  was  a  lode  min- 
ing law)  this  was  amended,  or  rather  supplemented,  by  a  section 
now  incorporated  and  in  force  in  section  2340  of  the  Revised  Stat- 
utes, and  always  taken  with  the  act  of  1866 : 

Revised  Statutes,  section  2340:  "All  patents  granted,  or  pre- 
emption or  homesteads  allowed,  shall  be  subject  to  any  vested  and 
accrued  water-rights,  or  rights  to  ditches  and  reservoirs  used  in 
connection  with  such  water-rights,  as  may  have  been  acquired  under 
or  recognized  by  the  preceding  section. ' '  * 

(3d  ed.) 

§  95.  The  Act  Explained  by  Judge  Field  and  Other  Author- 
ities.— The  obscurity  of  the  wording  of  these  sections  when  'con- 
sidered apart  from  their  history  has  been  frequently  pointed  out. 
In  Nevada,2  Lewis,  C.  J.,  speaks  of  Revised  Statutes,  section  2339, 
as:  "This  section,  which  by  its  turbid  style  and  grammatical  sole- 
cisms, more  surely  than  by  the  enacting  clause  of  the  act,  is  shown 
to  be  a  production  of  Congress,  may  be  found  on  page  253,  volume 
14,  of  the  Statutes  at  Large,"  and  that  it  "is  about  as  clear  and 
certain  as  the  object  and  purposes  of  the  acts  of  Congress  usually 
are.  It  is  true,  the  most  apt  words  to  indicate  this  purpose  are 
not  efnployed.  That  could  scarcely  be  expected,"  etc.  And  Mr. 
Justice  Stephen  J.  Field,  in  the  supreme  court  of  the  United  States, 
said  that  "the  language  used  is  not  happy."3 

25  A.  C.  July  26,  1866,  sec.  9 ;  14  683.  Judge  Lindley  says  (Lindley  on 
Stats.  253,  c.  262;  U.  S.  Comp.  Stats.  Mines,  see.  567)  as  to  mining,  with 

19?1  A  P'n14  T7'n      o    IQ™  17      i«      which  the  act  of  1866  dealt  more  than 

1  A.   C.   July   9,   1870,   sec.   17;    16 

Stats.  218,  c.  235;  TJ.  S.  Comp.  Stats.  ™th  waters:    "The  truth  is  manifest. 

1901,  p.   1437.  The    act    is    crude    and    imperfect." 

2  Hobart   v.   Ford,   6  Nev;    77,    15  (The  mining  part  of  it  was  repealed 
Morr^  Min.  Rep    236.  d      b  tt          t   al         the  same  lineg 

3  Basey  v.  Gallagher,  87  U.  S.  670,  '          s 
22    L.   Ed.   452,   1   Morr.   Min.   Rep.  substituted  in  1872.) 


§  95  Ch.  5.     HISTORICAL— TO  THE  ACT  OF  1866.     (3d  ed.)     109 

After  considering  the  history  and  some  of  the  leading  authorities 
construing  the  act,  it  becomes  clear  enough,  however.  The  classical 
exposition  is  contained  in  the  opinion  of  Judge  Field  in  Jennison 
v.  Kirk.4  This  opinion,  so  far  as  it  deals  with  the  meaning  of  the 
act  of  1866,  is  merely  a  condensation  of  the  Congressional  Globe 
report  of  Senator  Stewart's  speech  in  the  Senate,  and  by  adopting 
that  Judge  Field  here,  as  in  other  decisions  when  a  member  of  the 
supreme  court  of  the  United  States,  gives  up  his  former  stand,  and, 
now  that  the  war  is  over,  becomes  a  strong  supporter  of  the  theory 
of  the  pioneers  regarding  the  obligations  of  the  Federal  govern- 
ment. Judge  Field's  opinion  is  in  part  as  follows: 

"The-object  of  the  section  was  to  give  the  sanction  of  the  United 
States,  the  proprietor  of  the  lands,  to  possessory  rights,  which  had 
previously  rested  solely  upon  the  local  customs,  laws  and  decisions 
of  the  courts,  and  to  prevent  such  rights  from  being  lost  on  a  sale 
of  the  lands.  The  section  is  to  be  read  in  connection  with  other 
provisions  of  the  act  of  which  it  is  a  part,  and  in  the  light  of  matters 
of  public  history  relating  to  the  mineral  lands  of  the  United  States. 
The  discovery  of  gold  in  California  was  followed,  as  is  well  known, 
by  an  immense  immigration  into  the  State,  which  increased  its 
population  within  three  or  four  years  from  a  few  thousand  to  sev- 
eral hundred  thousand.  The  lands  in  which  the  precious  metals 
were  found  belonged  to  the  United  States,  and  were  unsurveyed, 
and  not  open,  by  law,  to  occupation  and  settlement.  Little  was 
known  of  them  further  than  that  they  were  situated  in  the  Sierra 
Nevada  Mountains.  Into  these  mountains  the  immigrants  in  vast 
numbers  penetrated,  occupying  the  ravines,  gulches  and  canyons, 
and  probing  the  earth  in  all  directions  for  the  precious  metals. 
Wherever  they  went,  they  carried  with  them  that  love  of  order 
and  system  and  of  fair  dealing  which  are  the  prominent  charac- 
teristics of  our  people.  In  every  district  they  occupied,  they 
framed  certain  rules  for  their  government,  by  which  the  extent  of 
ground  they  could  severally  hold  for  mining  was  designated,  their 
possessory  right  to  such  ground  secured  and  enforced,  and  contests 
between  them  either  avoided  or  determined.  These  rules  bore  a 
marked  similarity,  varying  in  the  several  districts  only  according 
to  the  extent  and  character  of  the  mines;  distinct  provisions  being 
made  for  different  kinds  of  mining,  such  as  placer  mining,  quartz 
mining,  and  mining  in  drifts  or  tunnels.  They  all  recognized  dis- 

4  98  U.  S.  453,  25  L.  Ed.  240,  4  Morr.  Min.  Rep.  504.     Italics  ours. 


110     (3ded.)     Pt.  II.     CALIFOKNIA  -  COLORADO  DOCTKINES.  §95 

covery,  followed  by  appropriation,  as  the  foundation  of  the  pos- 
sessor's title,  and  development  by  working  as  *he  condition  of  its 
retention.  And  they  were  so  framed  as  to  secure  to  all  comers, 
within  practicable  limits,  absolute  equality  of  right  and  privilege 
in  working  the  mines.  Nothing  but  such  equality  would  have  been 
tolerated  by  the  miners,  who  were  emphatically  the  lawmakers,  as 
respects  mining  upon  the  public  lands  in  the  State.  The  first  ap- 
propriator  was  everywhere  held  to  have,  within  certain  well-defined 
limits,  a  better  right  than  others  to  the  claims  taken  up;  and -in 
all  controversies,  except  as  against  the  government,  he  was  regarded 
as  the  original  owner,  from  whom  title  was  to  be  traced.  But  the 
mines  could  not  be  worked  without  water.  Without  water  the  gold 
would  remain  forever  buried  in  the  earth  or  rock.  To  carry  water 
to  mining  localities,  when  they  were  not  on  the  banks  of  a  stream 
or  lake  became,  therefore,  an  important  and  necessary  business  in 
carrying  on  mining.  Here,  also,  the  first  appropriator  of  water 
to  be  conveyed  to  such  localities  for  mining  or  other  beneficial  pur- 
poses was  recognized  as  having,  to  the  extent  of  actual  use,  the 
better  right.  The  doctrines  of  the  common  law  respecting  the 
rights  of  riparian  owners  were  not  considered  as  applicable,  or  only 
in  a  very  limited  degree,  to  the  conditions  of  miners  in  the  moun- 
tains. The  waters  of  rivers  and  lakes  were,  consequently,  carried 
great  distances  in  ditches  and  flumes,  constructed  with  vast  labor 
and  enormous  expenditures  of  money,  along  the  sides  of  mountains 
and  through  canyons  and  ravines,  to  supply  communities  engaged 
in  mining,  as  well  as  for  agriculturists  and  ordinary  consumption. 
Numerous  regulations  were  adopted,  or  assumed  to  exist,  from  their 
obvious  justness,  for  the  security  of  these  ditches  and  flumes,  and 
for  the  protection  of  rights  to  water,  not  only  between  different 
appropriators,  but  between  them  and  the  holders  of  mining  claims. 
These  regulations  and  customs  were  appealed  to  in  controversies  in 
the  State  courts,  and  received  their  sanction ;  and  properties  to  the 
value  of  many  millions  rested  upon  them.  For  eighteen  years, 
from  1848  to  1866,  the  regulations  and  customs  of  miners,  as  en- 
forced and  molded  by  the  courts  and  sanctioned  by  the  legislation 
of  the  State,  constituted  the  law  governing  property  in  mines  and 
in  water  on  the  public  mineral  lands.  Until  1866,  no  legislation 
was  had  looking  to  a  sale  of  the  mineral  lands.  The  policy  of  the 
cuuntry  had  previously  been,  as  shown  by  the  legislation  of  Con- 


§  95  Ch.  5.     HISTORICAI^TO  THE  ACT  OF  1866.     (3d  ed.)     Ill 

gress,  to  exempt  such  lands  from  sale.  In  that  year,  the  act,  the 
ninth  section  of  which  we  have  quoted,  was  passed 

"The  Senator  of  Nevada,  Honorable  William  M.  Stewart,  the 
author  of  the  act,  in  advocating  its  passage  in  the  Senate,  spoke 
in  high  praise  of  the  regulations  and  customs  of  miners,  and  por- 
trayed in  glowing  language  the  wonderful  results  that  had  followed 
the  system  of  free  mining  which  had  prevailed  with  the  tacit  consent 
of  the  government.  The  legislature  of  California,  he  said,  had 
wisely  declared  that  the  rules  and  regulations  of  miners  should 
be  received  in  evidence  in  all  controversies  respecting  mining  claims, 
and,  when  not  in  conflict  with  the  constitution  or  laws  of  the  State 
or  of  the  United  States,  should  govern  their  determination ;  4a  and  a 
series  of  wise  judicial  decisions  had  molded  these  regulations  and 
customs  into  'A  comprehensive  system  of  common  law,  embracing 
not  only  mining  law,  properly  speaking,  but  also  regulating  the 
use  of  water  for  mining  purposes.'  The  miner's  law,  he  added,  was 
a  part  of  the  miner's  nature.  He  had  made  it,  and  he  trusted  it 
and  obeyed  it.  He  had  given  the  honest  toil  of  his  life  to  discover 
wealth,  which,  when  found,  was  protected  by  no  higher  law  than 
that  enacted  by  himself,  under  the  implied  sanction  of  a  just  and 
generous  government.5  And  the  act  proposed  continued  the  sys- 
tem of  free  mining,  holding  the  mineral  lands  open  to  exploration 
and  occupation,  subject  to  legislation  by  Congress  and  to  local  rules. 
It  merely  recognized  the  obligation  of  the  government  to  respect 
private  rights  which  had  grown  up  under  its  tacit  consent  and 
approval.  It  proposed  no  new  system,  but  sanctioned,  regulated, 
and  confirmed  a  system  already  established,  to  which  the  people 
were  attached.  (Cong.  Globe,  1st  Sess.,  39th  Cong.,  pt.  IV,  pp. 
3225-3228.)" 

The  supreme  court  of  the  United  States  further  declared6  about 
the  early  views,  that  some  thought  the  Mexican  law  governed. 
"Others  believed  that,  whether  this  were  so  or  not,  it  would  be  a 
wise  policy  for  the  government  to  secure  to  itself  a  fair  proportion 
of  the  metal  produced  from  its  own  ground.  But  while  Congress 
delayed  and  hesitated  to  act,  the  swarm  of  enterprising  and  in- 
dustrious citizens  filled  the  country,  and,  before  a  State  could  be 

4a  Referring  to  Field's  Act  quoted  which  he  had  so  strenuously  denied 

supra,  sec.  72.  in  Boggs  v.  Merced  Co. 

5  It  is  noteworthy  that  Judge  Field  6  Ivanhoe  M.  Co.  v.  Keystone  M. 

here  adopted  the  "implied  sanction  of  Co.,  102  U.  S.  167,  26  L.  Ed.  126,  13 

a  just  and  generous  government"  Morr.  Min.  Rep.  214. 


112     (3ded.)     Pt.  II.     CALIFORNIA  -  COLORADO  DOCTRINES.  §95 

organized,  had  become  its  dominating  element,  with  wealth  and 
numbers  and  claims  which  demanded  consideration.  Matters  re- 
mained in  this  condition,  with  slight  exception,  until  the  year  1866, 
when  Congress  passed  a  law  by  which  title  to  mineral  land  might 
be  acquired  from  the  government  at  nominal  prices,  and  by  which 
the  idea  of  a  royalty  on  the  product  of  the  mines  was  forever  re- 
linquished. ' '  7  That  was  the  purpose  of  the  act  not  only  for  mines, 
but  for  waters  also.  The  agricultural  lands  had  been  formally 
opened  by  the  Homestead  Act;  the  mines  were  opened  by  the  first 
section  of  the  act  of  1866 ;  and  the  waters  and  rights  of  way  were 
held  free  under  its  ninth  section.  "It  was  for  the  purpose  of  pro- 
tecting the  rights  of  appropriators  of  water  for  beneficial  uses  on  the 
public  lands  which  had  vested  and  accrued,  by  virtue  of  local  cus- 
toms, laws,  and  decisions  of  the  courts,  that  the  ninth  section  of  the 
act  of  Congress  of  July  26,  1866,  the  substance  of  which  is  included 
in  section  2339  of  the  Revised  Statutes,  was  enacted.  It  was  ap- 
parent to  Congress,  and,  indeed,  to  everyone,  that  neither  local 
customs  nor  State  laws  or  decisions  of  State  courts  could  vest  the 
title  to  public  land  or  water  in  private  individuals  without  the 
sanction  of  the  owner,  viz.,  the  United  States."8 

T  In  another  case  the  free  develop-  exacting  royalties  on  the  products  of 

ment    theory    is    set    forth    regarding  the  mines,  and  gave  free  license  to  all 

mines,  saying  that  a  patent  adds  little  its   citizens,   and   those   who    had   de- 

to  a  claim  perfected  since  act  of  1866.  clared  their  intention  to  become  such, 

Chambers   v.    Harrington,    111   U.    S.  to    search   for   the   precious   and   eco- 

350,  4  Sup.   Ct.  Eep.  428,  28  L.  Ed.  nomic  minerals  in  the  public  domain, 

452.     Free    pasturage    was    also    the  and,  when  found,  gave  the  assurance 

government  policy  (Camfield  v.  United  of  at  least  some  measure  of  security 

States  (1896),  167  U.  S.  527,  17  Sup.  in  possession  and  right  of  enjoyment. 

Ct.   Rep.   864,   42  L.   Ed.   260),  until  What  had  theretofore  been  technically 

changed  by  the  Forest  Service.  a    trespass    became    thenceforward    a 

In  speaking  of  the  mining  phase  licensed  privilege,  untrammeled  by 
of  the  act  an  eminent  writer  relates  government  surveillance  or  the  ex- 
its purpose  in  the  same  terms  as  action  of  burdensome  conditions.  Such 
Judge  Field  applied  to  waters:  "By  conditions  as  were  imposed  were  no 
the  first  of  these  provisions  [that  all  more  onerous  than  those  which  the 
the  mineral  lands  of  the  public  domain  miners  had  imposed  upon  themselves 
should  be  free  and  open  to  exploration  by  their  local  systems.  That  such  a 
and  occupation],  the  government,  for  declaration  of  governmental  policy 
the  first  time  in  its  history,  inaugu-  stimulated  and  encouraged  the  develop- 
rated  a  fixed  and  definite  legislative  ment  of  the  mining  industry  in  the 
policy  with  reference  to  its  mineral  West,  is  a  matter  of  public  history." 
lands.  It  forever  [until  the  very  re-  Lindley  on  Mines,  2d  ed.,  sec.  55. 
cent  public  demand  for  the  policy  of  8  Benton  v.  Johneox.  17  Wash.  277, 
conservation,  the  policy  of  freedom  61  Am.  St.  Rep.' 912,  49  Pac.  498,  39 
was  regarded  as  fixed  in  the  West  L.  E.  A.  107. 
"forever "]  abandoned  the  idea  of 


§§96,97          Ch.  5.     HISTORICAL—TO  THE  ACT  OF  1866.     (3d  ed.)     113 
(3d  ed.) 

§  96.  An  Enactment  of  the  Policy  That  the  Waters  on  Public 
Lands  were  Open  to  Free  Development  Under  Local  Law. — It  will 
thus  be  seen  that  the  purpose  of  the  Act  of  1866  (now  sections  2339 
and  2340  of  the  Revised  Statutes  of  the  United  States)  was  to  put 
the  contention  that  the  pioneers  were  trespassers  at  rest  by  "ac- 
knowledging" that  they  never  were  trespassers;  that  they  were 
upon  the  lands  of  right  from  the  beginning.  The  Federal  title 
had  never  been  more  than  a  disturbing  technicality  to  the  pioneer, 
and  should  henceforth  remain  nominal  only,  as  a  trustee  who  shall 
resign  when  the  people  come  into  their  own  (such  was  their  idea). 
Congress,  for  the  same  reason  as  the  first  California  decisions 
(namely,  to  confirm  the  doctrine  of  free  development  under  local 
law),  passed  this  act  regarding  waters  and  rights  of  way  (note 
the  wording),  "acknowledging"  that  "rights"  had  "vested  and 
accrued"  in  the  locators  already,  even- before  the  statute,  and  "ac- 
knowledging and  confirming"  the  vested  character  thereof.  The 
water  sections  were  in  substance  the  enactment  of  the  policy  of 
free  development  of  waters  and  rights  of  way  on  public  land  under 
local  law — the  policy  we  have  traced  among  the  people  and  the 
original  pioneer  decisions;  a  declaration  that  the  pioneers'  rights 
need  no  longer  (and  never  had  needed)  to  "except  the  govern- 
ment." 

(3d  ed.) 

§  97.  Operates  as  a  Grant. — The  act  of  1866,  for  all  diversions 
of  water  on  public  land,  declares  a  grant  from  the  United  States 
to  the  appropriator  equal  in  force  with,  and  equivalent  to,  a  patent 
to  riparian  land.  The  supreme  court  of  the  United  States  called 
the  act  "An  unequivocal  grant."8  The  act  is  entitled,  "An  act 
granting  the  right  of  way  to  ditch  and'  canal  owners  through  the 
public  lands,  and  for  other  purposes,"  and  became  accepted  as 
merely  a  formal  establishment  of  the  original  pioneer  theory  of  a 
grant  or  general  license  from  the  United  States  to  all  citizens  who 
took  or  should  hereafter  take  possession  of  mines,  waters,  rights 
of  way  or  reservoir  sites  on  public  land,  under  regulations  of  local 
law.  For  many  years  this  explanation  of  the  act  of  1866  as  a 
grant  ran  through  the  Western  reports.10  . 

9  Broder  v.  Natoma  Water  Co.,  101  10  Numerous  authorities  to  this  ef- 

U.  S.  274,  275,  25  L.  Ed.  790,  5  Morr.  feet    are    quoted    in    a    later    chapter. 

Min.  Rep.  33.  Infra,  see.  155.     In  part,  more  techni- 
Water  Bights — 8 


114     (3d  ed.)     Pt.  H.     CALIFORNIA  -  COLORADO  DOCTRINES.  §  98 

(3d  ed.) 

§  98.  Only  Declaratory  of  the  California  Law. — And  in  thus 
declaring  the  theory  of  a  grant,  the  act  added  nothing  new  to  the 
law.  Until  the  act  the  United  States  had  made  no  formal  grant 
to  the  water  users,  it  is  true,  but  the  western  courts  and  people 
had  held  such  a  grant  to  exist  nevertheless,  and  the  act,  rather 
than  establishing  such  a  grant  for  the  first  time,  was  a  declaration 
that  the  courts  and  people  had  been  correct  in  spite  of  the  fact 
The  assertion  of  a  Federal  grant  before  the  act  was  a  fiction,  but 
the  act  declared  in  substance,  not  that  it  now  for  the  first  time  sup- 
plied the  grant,  but  that  the  fiction  was  and  always  had  been  the 
true  law. 

That  the  act  introduced  nothing  new,  and  is  only  declaratory 
of  the  theory  of  the  original  law  as,  before  the  statute,  it  always 
existed,  became  the  express  doctrine  of  Judge  Field  and  the  United 
States  supreme  court.  Through  Field  that  court  said  in  one  case 
that  the  United  States  had  from  the  beginning  encouraged  free 
and  unlimited  use  of  the  public  lands  for  mining  and  thereby,  even 
before  the  act,  "by  its  silent  acquiescence,  assented  to  the  general 
occupation,"  etc.,11  and  in  Jennison  v.  Kirk,12  quoted  in  a  previous 
section,  said  that  the  act  "merely  recognized  the  obligation  of  the 
government  to  respect  private  rights  which  had  grown  up  under 
its  tacit  consent  and  approval.  It  proposed  no  new  system,  but 
sanctioned,  regulated,  and  confirmed  a  system  already  established, 
to  which  the  people  were  attached. " 13  In  Broder  v.  Natoma  Water 
Co.,14  the  supreme  court  of  the  United  States  said: 

"We  are  of  the  opinion  that  it  is  the  established  doctrine  of  this 
court  that  rights  of  miners  who  had  taken  possession  of  mines  and 
worked  and  developed  them,  and  the  rights  of  persons  who  had 
constructed  canals  and  ditches  to  be  used  in  mining  operations  and 

cally,  it  was  a  release  by  a  disseisee  Merced    (supra,    sec.    86).     He   there 

to  his  disseisors  (although  this  is  only  said  the  miners  could  have  no  rights 

an  idea  here   suggested  by   the  way,  because  the  government  had  reserved 

and    it    would    be    only   in    part    ap-  its  mineral  lands;   here  he  adopts  the 

plicable).  miners'  view  that  this  reservation  was 

n  Atchison   v.    Peterson,    20    Wall.  not  against  them,  but  for  them,   "to 

(87  U.  S.)  507,  22  L.  Ed.  414,  1  Morr.  encourage    their    free    and    unlimited 

Min.  Rep.  583.  use";    and   he   here    also    accepts    the 

12  98  U.  S.  453,  25  L.  Ed.  240,  4  tacit  consent  or  license  which  he  had 
Morr.    Min.   Rep.    504,    quoted   supra,  rejected  in  the  Boggs  case. 

sec.  95.  14  lOi  U.  S.  274,  25  L.  Ed.  790,  5 

13  After    the    act    of    1866    Judge  Morr.  Min.  Rep.  33.     Note  that  there 
Field   thus   modified   his   views   about  is  an  error  in  the  report  in  the  Law- 
the   pioneers   having  been   trespassers  yers'  Edition  reprint. 

as  he  had  formerly  held  in  Boggs  v. 


§  98  Ch.  5.     HISTORICAL— TO  THE  ACT  OF  1866.     (3d  ed.)     115 

for  purposes  of  agricultural  irrigation,  in  the  region  where  such 
artificial  use.  of  the  water  was  an  absolute  necessity,  are  rights 
which  the  government  had,  by  its  conduct,  recognized  and  encour- 
aged and  was  bound  to  protect  before  the  passage  of  the  act  of 
1866,  and  that  the  section  of  the  act  which  we  have  quoted  was 
rather  a  voluntary  recognition  of  a  pre-existing  right  of  possession 
constituting  a  valid  claim  to  its  continued  use,  than  the  establish- 
ment of  a  new  one."  In  this  case  an  1853  appropriation  was  held 
to  prevail  against  an  1864  railway  grant  of  land,  made  before  the 
act  of  1866,  and  the  court  expressly  said,  "We  do  not  think  that 
defendant  is  under  the  necessity  of  relying  on  that  statute."  The 
railway  grant  had  contained  a  clause  excepting  ' '  any  lawful  claim, ' ' 
and  the  supreme  court  of  the  United  States  held  a  ditch  and  an 
appropriation  of  water  to  be  a  lawful  claim  against  the  United  States 
itself  even  before  the  act  of  1866.15  And  this  has  since  been  the 
general  ruling.16 

Thus  Congress  and  the  supreme  court  of  the  United  States  finally 
joined  with  the  supreme  court  of  California  in  holding  that  the 
pioneers  (the  appropriators)  had  not  been  trespassers;  that  the 
doctrine  of  appropriation  was  founded  on  the  theory  that  the  public 
domain  was  open  to  free  development  under  local  law,  and  that 
an  appropriator  is,  and  always  was,  a  grantee  of  the  United  States 
of  rights  of  way  and  of  waters  diverted  on  public  land  of  equal 
dignity  with  a  patentee  of  land,  and  if  prior  in  time  will,  and  al- 
ways would,  prevail  against  a  later  patent  to  riparian  land;  not 
merely  a  right  of  possession  against  later  mere  appropriators,  but 
title  against  the  world  as  a  grant  from  the  United  States  of  an  in- 
terest in  fee  in  the  public  land. 

Whatever  this  may  have  lacked  in  logic  or  legal  reasoning  is 
made  up  by  the  fact  that  it  actually  triumphed  and  became  a  fact 
of  history.  Until  the  act  of  1866,  Congress  had  never  made  an 
actual  grant,  but  nevertheless,  during  the  preceding  years,  under 
the  rulings  of  the  courts  and  acceptance  of  the  people,  rights  in 

15  See  Van  Dyke  v.  Midnight  Sun  there  by  license."     Lux  v.  Haggin,  69 

Co.    (Alaska),   177  Fed.   90.  Cal.  255,  at  347,  4  Pac.  919,  10  Pac. 

"The  construction  given  to  the  Ian-  674.     At   the   same   time   it   must   be 

guage   of  the   reservation    [in   Broder  noted  that  the  opinion  in  Lux  v.  Hag- 

v.    W.    Co.]    of    course    implies    that  gin    contains    some    expressions    of    a 

those     who     appropriated     lands     or  contrary  tendency-    The   act  of   1864 

waters  on  the   public  lands,  prior  to  referred    to    is    the    Pacific    Eailway 

the  acts  of  1864  and   1866,  had   not  grant  and  right  of  way  act. 

been    treated    by    the    government    in  16  Infra,   sec.    257. 
those  acts  as  mere  trespassers,  but  as 


116     (3d  ed.)     Pt.  II.     CALIFOENIA  -  COLORADO  DOCTRINES.  §  99 

the  public  domain  as  to  mines  and  rights  of  way  and  waters  were 
acquired  and  became  vested  against  the  world  under  the  fictitious 
grant  deduced  from  its  silence.  In  this  the  pubiie  land  law  of  the 
pioneers  was  an  illegitimate  thing,  but  it  was  the  law  in  practice; 
the  act  of  1866  legitimated  it  and  this  legitimation  related  back  to 
its  birth  and  continued  for  the  future.  It  is  a  clear  case  where  the 
law  was  evolved  from  the  exigencies  of  the  times,  molded  by.  cir- 
cumstances pressing  it  now  one  way,  then  the  other;  the  growth  of 
two  wars  and  the  winning  of  desert  and  wilderness  and  the  peopling 
of  a  continent,  more  potent  than  closeted  logic. 

(3d  ed.) 

§  99.     Conclusion. — The  act  of  1866  gave  the  formal  sanction 

of  the  United  States  to  the  prevailing  theory  of  a  grant  to  the 
holders  of  existing  rights  upon  public  land,  which  indeed  was  its 
primary  object ;  for  the  statute  had  in  view  chiefly  appropriations 
already  made  rather  than  future  ones,  and  the  protection  of  exist- 
ing rights  on  public  land  against  the  United  States  itself  (by  the 
act  of  1866)  and  against  its  later  riparian  patentees  (by  the  enact-' 
inent  of  1870)  was  the  primary  object.  Those  rights  had  been 
built  up  in  reliance  upon  the  tacit  acquiescence  of  the  United 
States,  the  true  owner  of  the  lands  and  (under  the  assumption  of 
those  days)  waters  on  which  appropriations  were  made,  and  these 
statutes  acquiesced  therein  expressly,  ' '  a  voluntary  recognition  of  a 
pre-existing  right  rather  than  the  establishment  of  a  new  one. ' ' 17 

It  further  provided  the  same  method  for  acquiring  water-rights 
on  public  land  in  the  future ;  a  vindication  of  the  existing  system 
for  the  future  as  well  as  for  the  past ;  as  to  which  the  following  very 
recent  expression  is  one  of  many  filling  the  Western  reports:  "The 
doctrine  of  appropriation  thus  established  was  not  a  temporary 
thing,  but  was  born  of  the  necessities  of  the  country  and  its  people, 
was  the  growth  of  years,  permanent  in  its  character,  and  fixed  the 
status  of  water-rights  with  respect  to  public  lands,"  and  it  was 
held  that  the  act  is  in  force  for  the  waters  of  Alaska.18  Appro- 

17  Osgood    v.    Water    Co.,    56    Cal.  "It   has,  as   we   interpret   this   law, 
571,   5   Morr.   Min.   Rep.   37;    Lux  v.  authorized  any  person  wishing  to  con- 
Haggin,    69    Cal.    255,    10    Pae.    674;  struct  a  canal  or  ditch  for  mining  or 
Broder  v.  Natoma  Water  Co.,  101  U.  agricultural   purposes   to   construct   it 
S.  274,  25  L.  Ed.  790,  5  Morr.  Min.  over    any   public   land,"   and    nothing 
Rep.  33;  Jacob  v.  "Day,  111  Cal.  578,  more  is  required  than  that  the  land  is 
44    Pac.    243;    Pomeroy    on   Riparian  public    and    that    the    ditch    is    con- 
Rights,  sees.  17,  28.  structed.     Hobart  v.  Ford,  6  Nev.  77, 

18  Van   Dyke.   v.   Midnight   Sun   M.  15  Morr.  Min.  Rep.  236 ;  accord,  Jacob 
Co.,  177  Fed.  90.  v.  Lorenz,  98  Cal.  332,  33  Pac.  119. 


§99  Ch.5.     HISTORICAL— TO  THE  ACT  OF  1866.     (3d  ed.)     117 

priators  of  water  on  public  land  to-day,  at  least  in  the  States  fol- 
lowing the  California  system,  always  claim  to  deraign  title  ulti- 
mately under  the  act  of  1866.19 

But  as  we  proceed  we  must  remember  that  it  was  wholly  public 
land  law,  involving  solely,  rights  in  the  unoccupied  public  domain. 
In  this  regard  there  is,  in  the  section  in  question  of  the  act  of  1866, 
a  proviso  requiring  payment  of  damages  to  settlers  for  injury  by 
appropriators.  As  below  mentioned,  the  proviso  was  probably  de- 
claratory, for  possessory  riparian  land  claimants,  of  what  Lux  v. 
Haggin  later  laid  down  for  riparian  patentees.20 

i»  Lux  v.  Haggin,  69  Cal.  255,  at  20  Infra,  sees.  221,  228,  ditches  on 
339,  10  Pae.  674.  private  land. 

§§  100-107.     (Blank  numbers.) 


118     (3ded.)     Pt.  H.     CALIFORNIA ,-  -COLORADO  DOCTRINES. 


CHAPTER  6. 

HISTORICAL  REVIEW    (CONTINUED)— FROM  THE   ACT 
OF  1866  TO  THE  PRESENT. 

A.     THE  PUBLIC  LAND  QUESTION  LAID  AT  BEST. 
§  108'.     The  Federal  policy  settled. 
§  109.     Early  State  legislation. 
§  110.     New  questions. 

B.  THE   CONFLICT   OVER  RIPARIAN   BIGHTS. 

§  111.  Private  title  to  land  and  new  industries. 

§   112.  The  law  and  irrigation. 

§  112a.  Same. 

§  113.  Riparian  rights  before  Lux  v.  Haggin. 

§  114.  Same. 

§  115.  Lux  v.  Haggin. 

§  116.  Result  of  Lux  v.  Haggin. 

§  117.  Riparian  rights  upheld  in  ten  States  and  Territories. 

§  118.  Riparian  rights  rejected  in  eleven  States  and  Territories. 

§  119.  Same — "Landowner"  statute. 

§  120.  Same — Collateral  results  of  the  rejection. 

§  121.  In  the  supreme  court  of  the  United  States. 

§  122.  Same. 

C.  LATER  AND  RECENT  STATE  LEGISLATION. 

§  123.  Public  service  declared  under  State  control. 

§  124.  Water  codes.  , 

§  125.  Same — (Legislation  in  1911). 

§  126.  Effect  of  this  legislation  on  riparian  rights. 

§  127.  Irrigation  districts — Wright  Act. 

D.     LATER  AND  RECENT  FEDERAL  LEGISLATION. 

$  128.  Desert  Land  Act. 

3  129.  Same — Hough  v.  Porter. 

§  130.  Same — New  Oregon  doctrine  based  on  the  Desert  Land  Act. 

$  131.  Federal  Right  of  Way  Acts. 

§  132.  Carey  Act. 

|  133.  National  Irrigation  Act. 

|  134.  Water  Users'  Association. 

§  135.  Other  Federal  legislation. 

§  136.  Recent  revival  of  discussion  of  Federal  policy. 

§  137.  Conservation. 


§  108  Ch.  6.    HISTORICAL— 1866  TO  THE  PEESENT.     (3d  ed.)     119 

E.     THE  FUTURE. 

§  138.     Future  of  the  system  of  appropriation. 

§  139.     Transitionary  state  of  the  law  of  appropriation  within  itself, 
f  140.     Converging  of  appropriation  and  riparian  rights. 
§  141.     Statement  of  the  doctrine  of  appropriation. 
§  142.     Conclusion. 
§§  143-150.     (Blank  numbers.) 

A.     THE  PUBLIC  LAND  QUESTION  LAID  AT  REST. 
(3d  ed.) 

§  108.  The  Federal  Policy  Settled.— The  act  of  1866  secured 
to  the  pioneers  their  existing  rights  in  real  property  in  mines, 
rights  of  way  and  waters  appropriated  from  the  public  domain, 
and  settled  the  same  system  for  their  free  acquisition  in  the 
future ; l  and  the  question  of  governmental  policy  was  never  there- 
after important  until,  at  the  time  of  this  writing,  the  Policy  of 
Conservation  has  again  brought  it  to  public  attention.  From  the 
year  1886  to  the  year  1908  the  Federal  policy  of  free  development 
of  water-rights  by  appropriation  upon  the  public  lands  under 
local  rules  had  become  so  settled  a  part  of  "the  law  of  the  realm" 
in  the  West,  that,  as  will  appear  hereafter,  the  newer  States  (and 
the  supreme  court  of  the  United  States)  forgot  its  origin,  and 
now  regard  it  as  a  matter  of  course,  inherent  in  local  law,  deny- 
ing that  Congress  gave  or  can  take  away  or  modify. 

The  act  of  1866  enacted  a  policy,  and  the  essence  of  it  was  got 
into  three  sentences.  It  was  a  formal  expression  of  the  people's 
own  way  of  thinking,  nothing  more;  brought  nothing  into  life  (if 
legislation  ever  did  or  can),  but  gave  security  to  the  life  the  people 
were  already  leading.  That  life  thereafter,  as  railroads  were  built 
and  cities  and  new  communities  founded,  went  into  the  New  West, 
whose  name  became  the  word  for  what  was  most  intensely  Ameri- 
can. Each  new  State  as  it  was  admitted  pointed  to  the  resources 
that  should  build  the  greatness  of  the  future  within  its  borders. 
The  "Dower  of  the  People"  and  "the  State's  Heritage,"  they 
called  the  public  domain:  a  great  Horn  of  Plenty,  in  which 
everyone  who  came,  especially  the  poor  and  homeless,  should 
find  something  there  for  himself;  the  only  price  being  in- 

1  The  act  of  1866  was  simply  a  di-  said  in  a  case  holding  that  a  mining 

rect   and   positive   recognition   on   the  claim   located   before    1866    prevailed 

part  of  the  government  of  these  rights  against    an    agricultural    patent     (is- 

and  a  guaranty  of  a  continuance  of  sued  in  1870).     Gold  Hill  Co.  v.  Ish, 

the  same  policy  in  the  future,  it  is  5  Or.  104,  11  Morr.  Min.  Rep.  635. 


120     (3d  ed.)     Pt.  H.     CALIFOBNIA  -  COLORADO  DOCTRINES.          §  109 

dustry  and  intelligence,  the  reward  being  a  competence  and  inde- 
pendent prosperity  for  all,  with  even  wealth  and  fortune  for  the 
lucky  (for  they  did  not  deny  wealth  too)  ;  these  and  like  words 
filled,  during  the  decades  following  the  act  of  1866,  the  opinions 
of  judges  and  resolutions  of  legislators,  no  less  than  the  daily 
newspaper  editorial  and  the  Fourth  of  July  oration.  Indeed,  most 
States  put  the  "free  development"  theory  into  their  constitutions 
or  statutes  by  providing,  "The  right  to  appropriate  unappropri- 
ated water  shall  never  be  denied,"  or  words  to  the  same  effect.2 

(3d  ed.) 

§  109.  Early  State  Legislation. — Shortly  after  the  acts  of  Con- 
gress  of  1866  and  1870  went  into  effect,  California  adopted  its 
codes  (1872).  In  the  Civil  Code  thirteen  sections3  were  devoted  to 
this  subject — a  perfectly  valid  field  for  State  legislation  within  con- 
stitutional limitations  upon  the  legislative  power  of  a  State.4  In  the 
mining  law,  subject  to  the  paramount  power  of  Congress,  the 
States  have,  from  the  earliest  days,  legislated  regarding  the  public 
domain,  whatever  may  be  the  source  of  their  right  so  to  do.  Re- 
garding water,  it  has,  however,  been  said  to  be  a  part  of  the  State 's 
police  power.5  At  all  events,  Congress  had  stepped  aside,  by  the  act 
of  1866,  and  there  now  opened  the  era  of  State  legislation  which  has 
continued  to  the  present  day.  No  substantial  innovations  were 
made  by  the  California  Civil  Code,  and  the  California  code  merely 
settles,  in  legislative  form,  the  decisions  of  the  courts  already 
made;  a  crystallization  of  the  law  of  appropriation,  superseding. 

2  For  example:  South  Dakota. — Laws  1905  and  1907 

Colorado. — "The  right  to  divert  un-  (see  infra,  Part  VIII). 
appropriated    waters    of    any   natural  Wyoming. — Const.,  art.  8,  sec.  3. 

stream  for  beneficial  uses  shall  never  This  list  is  probably  not  complete, 

be  denied."     Colo.  Const.,  art.  16,  sec.  See  Clark  v.  Nash,  198  U.  S.  361, 

6.     This  "guarantees  in  the  strongest  25  Sup.  Ct.  Rep.  676,  49  L.  Ed.  1085, 

terms    the    right    of    diversion    and  4  Ann.  Cas.  1171,  as  to  how  far  the 

appropriation     for     beneficial     uses."  supreme   court   of   the   United   States 

Wheeler   v.    Northern    Colo.    Irr.    Co.,  has  gone  in  holding  the  development 

10  Colo.  587,  3  Am.  St.  Rep.  603,  17  of  the  West  to  be  of  the  utmost  pub- 

Pac.  487.  lie  interest. 

Idaho. — Const.,     art.     15,     sec.     3;  3  Sections   1410-1422. 

Stats.  1905,  c.  23,  52b.  •*  Lux   v.   Haggin,   69   Cal.   255,   10 

NebrasTca. — Comp.   Stats.   1903,  sec.  Pac.    674;    Gutierres    v.    Albuquerque 

6451;     Cobbey's     Stats.,     sec.     6797;  etc.  Co.,   188   U.   S.  545,   23   Sup.  Ct. 

Laws  1895,  c.  69,  p.  260,  sec.  43.  Rep.  338,  47  L.  Ed.  588. 

New   Mexico. — Laws    1905,   p.   270,          5  White    v.    Farmers'    etc.    Co.,    22 

sec.  1.    .  Colo.  191,  43  Pac.  1028,  31  L.  R.  A. 

North  Dakota. — Laws   1905,  c.  34,  828;   Kansas  v.  Colorado,  206  U.  S. 

sec.  1;  Rev.  Codes  (1905),  see.  7604.  46. 


§  109  Ch.  6.     HISTORICAIr-1866  TO  THE  PRESENT.     (3d  ed.)     121 

the  miners'  customs  and  rules,  which  thereafter  ceased  to  have 
any  operative  force  in  the  California  law  of  waters.  No  new  rules 
were  incorporated  except  in  minor  details  that  will  be  hereafter 
noted.6 

In  one  or  two  instances  the  principle  of  priority  of  appropriation 
of  waters  upon  public  land  passed  into  legislative  enactment  as 
a  statement  of  the  decisions  before  the  adoption  of  the  California 
codes.  In  Wyoming  the  territorial  legislature  in  1869  passed  a 
law,  declaratory  of  the  California  decisions,  for  the  development 
of  the  mining  resources  of  the  territory,  and  provided  in  that  act 
Cor  placing  and  recording  notices  of  claims  for  ditches  and  water 
privileges;  and  requiring  the  completion  of  such  ditches  within 
a  certain  time  after  filing  notice.7  After  the  enactment  of  the 
California  Civil  Code,  statutes  were  passed  in  other  States  gener- 
ally copying  its  provisions  upon  appropriation  of  water.8  The  first 
legislation  was  generally  modeled  upon  the  California  law  as  rep- 
resented by  the  decisions  of  the  California  court  and  formulated 
in  the  Civil  Code.  In  Nebraska,  the  rule  wa&  not  enforced  until 
recently.9 

Since  the  enactment  of  the  California  Civil  Code  there  has  been 
(for  reasons  hereafter  appearing)  practically  no  legislation  in 
California,  though  Professor  Pomeroy  wrote  his  work  on  Riparian 
Rights  to  urge  it.  The  State  legislation  in  California  since  then 
has  been  chiefly  devoted  to  irrigation  districts,  leaving  the  law  of 
waters  in  general  untouched.  But  more  recently  there  has  been 
extensive  legislation  in  most  of  the  other  States,  and  legislation 
was  revived  again  in  California  in  1911. 

As  a  rule,  as  will  appear  hereafter,  the  State  legislation  has  its 
basis  in  the  policy  of  free  development.10 

6  Pomeroy  on  Riparian  Rights,  89;  Senator   Nelson,   of   Minnesota:    "Do 
Blanchard     and     Weeks     on     Mining  the    States    charge    anything    for    the 
Claims  and  Water  Rights,   696.     See  use   of   the    water?"     Senator   Clark, 
infra,  sec.  361  et  seq.  of  Wyoming:   "They  do  hot."     Sena- 

7  Laws   1869,  pp.  310,  311,  c.   22,  tor  Smoot,  of  Utah:  "My  State  does 
sees.  15-17;  Willey  v.  Decker,  11  Wyo.  not  charge  a  cent."     Senator  Hughes, 
496,   100  Am.   St.  Rep.   939,   73   Pac.  of  Colorado:  "The  constitution  of  my 
210.  State  says  that  it  shall  be  free."     The 

8  Infra,  sec.  361  et  seq.  Chairman:   "Does  any   State  make  a 

9  Meng    v.    Coffey,    67    Neb.    500,  charge?"     Senator     CJiamberlain,     of 
108  Am.  St.  Rep.  697,  93  N.  W.  715,  Oregon:   "If  anybody  in  Oregon   ap- 
60  L.  R.  A.  910,  saying:    "Irrigation  propriates  water,   he  must   develop  it 
is   very   young   in   this   State,   as   the  within  a  certain  time  or  lose  it."    The 
semi-arid  portions  did  not  begin  to  be  Chairman:   "But  if  he  develops  it  in 
settled   till   about   1880.".  that    time,    does    the    State    charge?" 

10  In  the  Senate  Committee  on  Put        Senator  Chamberlain:    "It    makes    a 
lie  Lands,  Feb.  16,  1910,  it  was  said:       small  charge." 


122    (3ded.)    Pt.  II.    CALIFORNIA  -  COLORADO  DOCTRINES.    §§110,111 

(3d  cd.) 

§  110.     New  Questions. — With  the  close  of  the  Civil  War,  and 

the  passage  of  the  act  of  1866  (and  the  Homestead  Act  in  1862, 
and  the  Pacific  Railway  Act  in  1864),  there  came  a  new  era  in  the 
West — the  era  of  development.  New  questions  arose  out  of  the 
rapid  passage  of  the  lands  into  private  hands,  and  the  rapid  growth 
of  the  West.  As  to  the  first,  the  great  question  turned  upon  the 
right  of  private  landowners  to  streams  on  their  land  as  against 
appropriations  initiated  after  the  land  had  become  private;  from 
being  one  of  public  land  law  the  subject  of  contention  became  one 
of  private  land  law.  As  to  the  second  (more  recently),  the  crowd- 
ing of  the  appropriators  on  many  streams  necessitated,  under  the 
doctrine  of  appropriation,  detailed  regulation,  supervision  and 
system  in  acquiring,  defining  and  regulating  appropriations. 


B.     THE  CONFLICT  OVER  RIPARIAN  RIGHTS. 
(3d  ed.) 

§  111.    Private  Title  to  Land  and  New  Industries. — As  has 

been  seen,  though  water  was  appropriated  for  all  sorts  of  uses  from 
the  start,  yet  mining  was  the  paramount  industry  in  California 
and  use  for  mining  predominated.  But  in  the  seventies  and  early 
eighties,  conditions  in  California  changed.  The  completion  of  the 
Pacific  Railroad  brought  the  West  into  easy  reach  of  the  world. 
The  building  of  the  telegraph  opened  quick  communication.  The 
railway  grants  and  Homestead  Act  now  furnished  a  practicable 
means  of  obtaining  title.  The  public  lands  were  being  rapidly 
taken  up  and  bought  by  private  persons,  under  Federal  statutes, 
and  the  fee  passed  out  of  the  United  States  to  a  large  extent. 
Small  farms  and  large  ranches,  orchards,  towns,  sprang  up  on 
what  had  before  been  vacant  land.  California  grew  into  a  settled 
agricultural  and  commercial  community  resembling  more  and  more 
the  older  States ;  and  the  pioneer  conditions  that  had  forced  a 
departure  from  the  common  law  were  passing  into  the  background 
as  mining  ceased  to  be  the  paramount  industry  and  as  the  waters 
no  longer  were  wholly  of  the  public  domain.  The  rights  of  the 
landowner  through  whose  land,  now  private,  a  stream  flowed,  never 
before  used  by  anyone,  became  an  important  question.  The  prem- 
ise in  Irwin  v.  Phillips,  the  original  precedent,  that  the  lands 
and  waters  in  controversy  were  a  part  of  the  public  domain,  to 
which  no  one  claimed  private  proprietorship,  was  no  longer  true. 


§  112  Ch.  6.     HISTORICAL— 1866  TO  THE  PEESENT.     (3d  ed.)     123 

(3d  ed.) 

§  112.  The  Law  and  Irrigation. — The  chief  industry  demand- 
ing water  under  these  new  conditions  was  irrigation.  A  well- 
known  writer11  declared  that  California  largely  owes  her  prom- 
inence to-day  to  irrigation,  and  that  irrigation  has  reached  its 
greatest  development  in  that  State.  That  in  irrigation  lies  the 
future  of  the  West,  there  can  be  no  doubt.12  We  may,  then, 
digress  a  little,  to  set  forth  the  great  conflict  of  opinion  as  to 
whether  the  common  law  of  riparian  rights  or  the  doctrine  of 
appropriation  is  more  favorable  to  development  of  the  West,  or 
whether  either  is  inimical  thereto. 

In  many  of  the  Western  States13  feeling  runs  high  against  any 
attempt  to  enforce  the  common-law  rules  of  riparian  rights,  and 
it  is  said  that  appropriation  is  absolutely  essential.  In  Idaho,14 
the  court  rose  against  the  "phantom  of  riparian  rights,"  and  de- 
clared appropriation  the  "lineal  descendant  of  the  law  of  neces- 
sity." In  Utah,15  speaking  of  riparian  rights,  it  is  declared:  "It 
was  ascertained  that  either  that  doctrine  must  be  modified  or 
that  this  country  must  remain  a  barren  waste."  In  a  Nevada 
case  it  is  said :  ' 'Here  the  soil  is  arid  and  unfit  for  cultivation  unless 
irrigated  by  the  waters  of  running  streams.  The  general  surface 
of  the  State  is  table-lands,  traversed  by  parallel  mountain  ranges. 
The  great  plains  of  the  State  afford  natural  advantages  for  con- 
ducting water,  and  lands  otherwise  waste  and  valueless  become 
productive  by  artificial  irrigation.  The  condition  of  the  country 
and  the  necessities  of  the  situation  impelled  settlers  upon  the 
public  land  to  resort  to  the  diversion  and  use  of  the  waters.  This 
fact  of  itself  is  a  striking  illustration  and  conclusive  evidence  of 
the  inapplicability  of  the  common-law  rule. ' ' 16  The  same  court 
recently  also  sail:  "Irrigation  is  the  life  of  our  important  and 
increasing  agricultural  interests,  which  would  be  strangled  by  en- 
forcement of  the  riparian  principle."17  Following  this  side  of 

11  Kinney  on  Irrigation,  sec.  339.  15  Salt  Lake  City  v.  Salt  Lake  etc. 

12  "One  of  the  most  important  con-  Co.,  25  Utah,  456,  71  Pac.  1069. 
cerns  of  the  State."     Speer  v.  Steph-  16  Reno  Smelting  Works  v.  Steven- 
enson  (1909),  16  Idaho,  707,  102  Pac.  son,   20    Nev.    269,    19   Am.    St.    Eep. 
365.  364,  21  Pac.  317,  4  L.  E.  A.  60. 

13  A  list  of  which  is  given  below,  17  Twaddle  v.  Winters,  29  Nev.  88, 
eec.  118.  85   Pac.    284,    89   Pac.    289.     In   this 

14  Drake  v.  Earhart,  2  Idaho  (756),  case  the  court  attacks  the  California 
716,   23   Pac.    541.     A   recent   Alaska  law    for    upholding    riparian    rights, 
case   also   calls   the   riparian   right   a  with  a  misunderstanding  that  is  fre- 
"phantom."     McFarland      v.      Alaska  quent.     In    Kansas    v.    Colorado,    206 
etc.  Co.,  3  Alaska,  308.  U.  S.  46,  27  Sup.  Ct.  Eep.  655,  51  L. 


124     (Sded.)     Pt.  II.     CALIFORNIA  -  COLORADO  DOCTEINES.         §112 

the  question,  Mr.  Justice  Holmes  recently  said  in  the  supreme 
court  of  the  United  States  regarding  the  doctrine  of  riparian 
rights:  "Such  a  limitation  would  substitute  accident  for  a  rule 
based  upon  economic  considerations,  and  an  effort,  adequate  or 
not,  to  get  the  greatest  use  from  all  available  land";18  while  Mr. 
Justice  Brewer,19  in  words  which  run  through  the  Western  reports, 
says  that  under  the  law  of  prior  appropriation  barrenness  disap- 
pears and  the  desert  becomes  a  garden,  blossoming  like  the  rose.20 
In  the  rest  of  the  Western  States,21  the  courts  have  been  equally 
positive  that  the  doctrine  of  riparian  rights  is  a  beneficial  one  for 
private  land  and  that  the  law  of  appropriation  is  a  system  to  be 
viewed  with  alarm.  In  California,22  the  court  says  that  it  would  not 
require  a  prophetic  vision  to  see  that  the  law  of  appropriation  alone 
would  result  in  a  monopoly  of  the  waters  of  the  State  by  a  few 
individuals.  In  a  very  recent  case  the  California  court,  under 
circumstances  involving  percolating  water  where  they  were  totally 
unbound  by  precedent,  brought  in  the  riparian  doctrine  de  novo 
as  imperatively  demanded  by  conditions.23  In  Montana,24  the  chief 
justice  said  that  the  common  law  of  riparian  rights  is  best  adapted 
to  irrigation,  saying:  "Water  for  irrigation  in  this  country  as 
naturally  belongs  to  the  lands  through  which  the  stream  passes,  in 
certain  proportions,  as  in  other  countries  it  belongs  to  the  land 
to  supply  the  necessities  of  life."  And  he  further  says:  "Is  it 
not  the  true  policy  of  this  Territory  to  erect  such  a  system  of  laws 
here  as  shall  distribute  our  short  supply  of  water  to  the  best  advan- 
tage to  all  our  people?  The  common  law  applied  to  this  country 
is  ample  and  sufficient  to  secure  this  much  desired  end";  and 
after  setting  forth  objections  to  the  doctrine  of  appropriation,  closes 

Ed.  956,  Theodore  A.  Bell,  member  of  20  Quotations    to    this    effect    could 

Congress      from      California ;      J.     C.  be  repeated  from  all  the  States  given 

Needham,  member   of   Congress   from  below,   which    reject    the    doctrine    of 

California;     Henry     C.     Hansbrough,  riparian  rights  in  toto.     See,  further, 

United    States    Senator    from    North  the  quotations  in  Willey  y.  Decker,  11 

Dakota;     Alexander    Oswald    Brodie,  Wyo.  496,  100  Am.  St.  Rep.  939,  73 

former  governor  of  Arizona;   Francis  Pac.  210,  given  infra,  sec.  168. 

E.    Warren,    United    States    Senator  21  See  list,  sec.   117,  below, 

from    Wyoming;     Joseph    M.    Carey,  22  L            Haemn    69  Pal    2^    at 

formerly  U.  S.   Senator  from  Wyom-  309(    iS^e .^^oted  frl/ra    'sec 

ing,  and  many   engineers   testified   to  ,Q,g 
their  opinion  of  the  ruinous  effect  of 

the  common  law  on  irrigation.  23  Mlller  v-  Ba7  Cities  W.  Co.,  157 

18  Boquillas  etc.  Co.  v.  Curtis,  215  Cal-  256>  107  Pac-  H5,  27  L.  R.  A., 

U.  S.  339,  29  Sup.  Ct.  Rep.  495,  53  N-  S->  772- 

L.  Ed.  822.  24  Thorp    v.    Freed,    1    Mont.    651, 

W  Kansas  v.  Colorado,  206  U.  S.  46,  Wade,  C.  J. 
27  L.  Ed.  655,  51  L.  Ed.  956. 


§  112  Ch.  6.     HISTORICALr— 1866  TO  THE  PEESENT.     (3d  ed.)     125 

his  opinion:  "And  all  these  consequences,  so  disastrous  in  any 
view,  are  to  be  visited  upon  Montana,  that  a  few  individuals  may 
have  what  does  not  now,  ahd  never  did,  belong  to  them. ' ' 25  In 
Nebraska,1  the  court  arraigns  the  unrestricted  law  of  appropria- 
tion, and  says  it  breeds  monopolies;  leads  to  antagonism,  strife, 
dissension,  gross  exactions,  abuses;  is  detrimental  to  the  public 
welfare;  has  given  rise  to  interminable  litigation.  Professor  Pom- 
eroy  said:  "The  doctrine  of  prior  appropriation  is  completely  at 
war  with  a  system  which  recognizes,  harmonizes,  and  protects  the 
rights  of  all  parties  in  the  State."  2 

These  statements  so  far  quoted  are  in  the  nature  of  a  cross- 
complaint,  or  recrimination,  so  to  speak.  By  way  of  reply  to  the 
assertion  that  the  common  law  is  inapplicable  to  conditions  where 
irrigation  is  necessary,  it  is  said  in  Nebraska:3  "A  great  deal  of 
what  has  been  urged  upon  us  as  demonstrating  the  inapplicability 
of  the  rules  of  the  common  law  upon  this  head  to  conditions  in 
Nebraska  proceeds  upon  an  erroneous  impression  of  the  nature 
and  purpose  of  such  rules.  Nor  do  we  believe  that  the  common- 
law  rule  of  equality  among  riparian  owners,  administered  liber- 
ally with  respect  to  the  circumstances  of  particular  localities,  is 
necessarily  prohibitive  of  irrigation  anywhere.  If  we  bear  in  mind 
wherein  the  essential  doctrine  of  the  common  law  on  this  subject 
consists,  we  doubt  whether  a  more  equitable  starting  point  for  a 
system  of  irrigation  law  may  be  found."  And  in  another  case,4 
the  same  court  says:  "But  it  cannot  be  said  that  the  common-law 
rule  of  riparian  ownership  is  inconsistent  with  the  use  of  water 
for  irrigation  purposes,  for,  as  we  shall  see  later  on,  the  right  to 
the  use  of  water  for  irrigation  purposes  is  one  of  the  elements  of 

25  He    desired    to    refuse    to    allow  this   to    create   strifes,   conflicts,   and 

the  law  of  appropriation  any  recogni-  breaches  of  the  peace.     The  right  of 

tion  whatever  for  irrigation;   that  is,  prior     appropriation     on     the     public 

to  apply  the  common  law  alone  and  streams  was  a  most  fruitful  cause  of 

reject    the    doctrine   of    appropriation  litigation  in  California,  as  is  shown  by 

in  toto  as   concerns  irrigation.  the  great  number  of  reported  cases; 

1  Farmers'   Irr.   Dist.   v.  Frank,   72  but  this  is  a  feeble  illustration  of  the 
Neb.  136,  100  N.  W.  286.  litigation  and  controversy  which  must 

2  Pomeroy  on  Riparian  Rights,  sec.  arise   from   the   statutes   of   Colorado 
160.     In    another    place    (page    264)  and   of   the   various   Territories   when 
he  says:   "As  Colorado  and  these  Ter-  they  come  into  full  operation  upon  an 
ritories  become  more  fully  settled,  es-  increasing  population." 

pecially  by  an  agricultural  population,  3  Meng  v.  Coffey,  67  Neb.  500,  108 

this   system   of  water  regulation  will  Am.  St.  Rep.  697,  93  N.  W.  715,  60 

inevitably   give   rise   to    an   enormous  L.  R.  A.  910. 

amount   of   trouble,   controversy,   and  4  Crawford   v.   Hathaway,   67   Neb. 

litigation.     It    is    impossible    to    con-  325,  108  Am.  St.  Rep.  647,  93  N.  W. 

ceive  of  legislation  tending  more  than  781,  60  L.  R.  A.  889. 


126     (3ded.)     Pt.  II.     CALIFORNIA  -  COLORADO  DOCTRINES.          §112 

property  belonging  to  the  riparian  owner  along  with  that  of  its 
use  for  domestic  and  water-power  purposes."  And  in  Washing- 
ton:5 "Now,  the  common-law  doctrine  declaratory  of  riparian 
rights,  as  now  generally  understood  by  the  courts,  is  not,  in  our 
judgment,  inconsistent  with  the  constitution  or  laws  of  the  United 
States  or  of  this  State.  Nor  is  it  incompatible  with  the  condition 
of  society  in  this  State,  unless  it  can  be  said  that  the  right  of  an 
individual  to  use  and  enjoy  his  own  property  is  incompatible  with 
our  condition — a  proposition  to  which,  we  apprehend,  no  one  would 
assent"  for  a  moment. ' '  6 

The  Oregon  court  has  recently  taken  an  intermediate  position, 
saying  that  the  common  law  of  riparian  rights  is  better  adapted 
to  domestic  uses,  though  exclusive  rights  by  priority  of  appropria- 
tion are  better  for  irrigation,  mining  and  manufacturing ;  but  as  to 
domestic  uses,  declares  that  an  abrogation  of  riparian  rights  would 
be  against  the  public  welfare.7 

In  Texas  there  is  a  different  rule  for  different  parts  of  the  State,8 
but  in  California  the  court  said:9  "It  is  said,  it  should  be  held 
that  the  streams  in  the  more  arid  portions  of  California  may  be 
entirely  diverted  by  the  prior  appropriator,  as  against  those  below, 
and  that  the  common-law  rights  of  riparian  proprietors, should  pre- 
vail in  the  regions  in  which  the  climate  more  nearly  resembles  that 
of  other  States  where  the  common-law  rule  is  enforced.  The  arid- 
ity of  the  soil  and  air  being  made  the  test,  the  greater  the  aridity 
the  greater  the  injury  done  to  the  riparian  proprietors  below  by 
the  entire  diversion  of  the  stream,  and  the  greater  the  need  of 
the  riparian  proprietor,  the  stronger  the  reason  for  depriving  him 
of  the  water.  It  would  hardly  be  a  satisfactory  reason  for  de- 
priving riparian  lands  of  all  benefit  from  the  flow  that  they  would 
thereby  become  utterly  unfit  for  cultivation  or  pasturage,  while 

5  Benton  v.  Johncox,  17  Wash.  277,  authorizing  each  to  make  a  reasonable 
61  Am.  St.  Rep.  912,  49  Pac.  498,  39  use  of  it,  providing  he  does  no  injury 
L.  R.  A.  107.  to    the    others    equally    entitled    to    it 

6  "But  suppose  that  decision  should  with  himself."     Van  Sickle  v.  Haines, 
necessitate   the  adoption  of   the  com-  7  Nev.  249,  15  Morr.  Min.  Rep.  201. 
mon    law    respecting    the    manner    in  Since  overruled. 

which  running  water  may  be  used  by          7-0-       ^ 

those  having  Ihe  right  Jit;  although  giTg  =°"£j'   *°rt« 

it  may  operate  unjustly  in  some  cases,  fi^ed    102  Vc  >8 

still,  as  a  general  rule,  none  more  just  '     u 

and  reasonable  can  be  adopted  for  this          8  **7™»  sec-  117- 

State.     It  is  a  rule  which  gives  the          9  Lux  v.  Haggin,   69   Cal.   255,  10 

greatest  right  to  the  greatest  number,  Pac.  674. 


§  112a          Ch.  6.    HISTOEICALr— 1866  TO  THE  PEESENT.     (3d  ed.)     127 

much  of  the  water  diverted  must  necessarily  be  dissipated.10  No 
precise  line  of  separation  between  the  regions  so  characterized  is 
pointed  out,  and  the  attempted  classification  is  itself  somewhat 
uncertain  and  indefinite.  It  would  seem  there  could  be  no  doubt 
that  the  law,  derived  from  the  same  sources,  is  the  same  every- 
where in  California.  ....  Whatever  is  the  general  law  bearing 
on  the  subject,  it  is  the  same  everywhere  within  the  limits  of  the 
State."11 

(3d  ed.) 

§  112a.  Same. — The  first  thing  that  strikes  attention  in  this  con- 
flict of  opinion  is  thus  expressed  by  the  Nebraska  court : 12  "In  all 
States  which,  like  our  own,  are  but  partially  arid,  the  common  law 
is  in  force.  The  States  holding  to  the  contrary  rule  are  wholly 
within  the  arid  regions. ' '  The  relative  merits  of  the  two  systems 
would  appear  to  depend  on  the  relative  scarcity  of  water  where 
the  systems  are  to  be  applied^ 

The  reason  for  the  difference  may  lie  somewhat  deeper.  Cali- 
fornia, where  the  common  law  is  (legally  speaking)  in  force  for 
private  lands  (as  well  as  appropriation  for  public  land),  is  as  arid 
in  some  parts  as  are  any  of  the  other  States.13  In  one  case,14  speak- 
ing of  certain  California  land,  it  was  said:  "The  water  was  so 
scarce  that  the  land  was  liable  to  dry  up  and  blow  away."  Aridity 
is,  however,  outside  of  California,  a  characteristic  of  the  pioneer 
regions  to-day;  or  rather,  because  entirely  arid,  certain  of  the 
interior  States  are  sparsely  settled  and  not  largely  developed.  Be- 

10  Where  riparian  rights  are  reject-  13  The    portion    of    the    public    do- 
ed,   the   law   of   appropriation   is   not  main   lying   between   the   ninety-ninth 
relaxed    on    this    account,    and    it    is  meridian     of     longitude     west     from 
no  argument  that  the  diversion  "leaves  Greenwich   and   the   Pacific   Ocean   is 
these  lands  valueless  and  of  no  bene-  arid,  and  generally  incapable  of  culti- 
fit   for  the  only  and   natural  uses   to  vation  except  by  means  of  irrigation; 
which  they   could  be  applied."     That  that  region  embraces  more  than  one- 
is    held    not    to    be    material.     Stern-  third    of    the    geographical    area    of 
berger  v.  Seaton  etc.   Co.    (1909),  45  the  United  States,  and  comprises  New 
Colo.    401,    102    Pac.    168.     Compare  Mexico,  Arizona,  Colorado,  Wyoming, 
Cascade    Co.   v.    Empire    Co.    (Colo.),  Utah,    Idaho,    Montana    and    Nevada 
181  Fed.  1011.  and   large  portions   of   the   States   of 

11  To  the  same  effect,  Meng  v.  Cof-  Oregon,  California,  Nebraska,  Kansas, 
fey,  67   Neb.   500,   108   Am.   St.  Eep.  and  Texas  and  of  the   Territories  of 
697,  '93  N.  W.  715,  60  L.  E.  A.  910.  Washington    and    Dakota.     Willey    v. 

But  see,  in  Washington,  infra,  sec.  Decker,    11    Wyo.    496,    100    Am.    St. 

635.  Rep.  939,  73  Pac.  210. 

12  Meng    v.    Coffey,    67    Neb.    500,  1*  Hewitt    v.    Story,    64    Fed.    510. 
108  Am.  St.  Kep.  697,  93  N.  W.  713,  12  C.  C.  A.  250,  30  L.  E.  A.  265. 
60  L.  E.  A.  910. 


128     (3<ied.)     Pt.H.     CALIFORNIA  -  COLORADO  DOCTRINES.        §  112a 

yond  the  matter  of  aridity  is  the  more  fundamental  consideration 
that  the  law  of  appropriation  is  a  pioneer  doctrine,  one  to  fit  the 
development  of  sparsely  settled  and  rough  regions  of  any  kind. 
Where  there  are  few  riparian  proprietors  and  the  region  is  new 
and  unsettled  public  land,  the  rule  of  "first  come  first  served"  is 
eminently  the  system  to  accomplish  settlement  and  development, 
while  the  restriction  of  use  to  riparian  lands  when  the  riparian 
lands  have  been  little  taken  up  impedes  that  much-desired  result. 
On  the  other  hand,  in  regions  more  closely  settled,  where  the 
riparian  lands  have  been  more  fully  taken  up,  and  the  small  hold- 
ings of  land  under  private  title  are  many,  and  the  important  enter- 
prises are  not  merely  a  few  on  a  large  scale — in  such  regions  the 
restriction  to  riparian  lands  is  in  the  interest  of  a  whole  community 
(the  riparian  public),  while  the  rule  of  "reasonable  use"  upon 
correlative  lines,  each  riparian  owner  being  required  to  adjust  his 
use  to  the  equality  in  right  of  his  neighbor,  has  more  element  of 
justice  than  to  exalt  the  first  user  over  all  the  rest  of  the  com- 
munity. For  the  more  settled  communities,  or  for  adjustment  of 
rights  upon  the  host  of  little  streams,  the  rule  of  "first  come 
first  served"  is  inadequate,  because  based  upon  too  selfish  a  prin- 
ciple, opening  the  way  to  monopoly. . 

The  difficulty  at  present  lies  mainly  in  applying  to  unsettled 
regions  a  system  which,  like  the  law  of  riparian  rights,  presup- 
poses a  settled  region ,  being  drawn  from  long-settled  landed  com- 
munities. The  history  we  have  been  tracing  of  the  doctrine  of 
appropriation  shows  that  the  pioneer  conditions  on  the  unsettled 
public  domain  in  California  were  fundamental  in  giving  rise  to 
the  doctrine  of  appropriation.  In  early  California  we  saw  that 
it  was  urged  that  it  was  peculiarly  a  mining  doctrine,  not  to  be 
applied  to  agriculture,  and  the  court  had  much  difficulty  before 
it  was  accepted  as  a  doctrine  of  general  application  and  outlook. 
To-day,  in  the  interior,  the  pendulum  is  swinging  the  other  way; 
it  is  called  peculiarly  an  irrigation  doctrine.  Neither  in  history 
nor  results  does  this  seem  justified.  It  is  neither  an  irrigation  nor 
a  mining  doctrine;  it  is  one  admirably  adapted  to  all  pursuits  so 
long  as  applied  in  a  new  region,  but  may  with  advantage  be  sup- 
plemented by  the  correlative  rules  of  "reasonable  use"  of  the 
common  law,  as  the  regions  become  more  settled  and  developed.15 
For  closely  settled  regions  (especially  upon  small  streams)  the  com- 

18  See  infra,  sec.  310  et  seq. 


§  112a          Ch.  6.     HISTORICAL— 1866  TO  THE  PEESENT.     (3d  ed.)     129 

mon  law  of  riparian  rights  comes  closer  to  "the  people's  system," 
of  equal  rights  for  all,  and  prior  rights  for  none,10  and  seems  quite 
in  line  with  the  conservation  movement. 

Upon  California  streams  available  for  irrigation  the  situation 
now  is  that  their  summer  flow,  especially  in  Central  California 
(the  San  Joaquin  Valley)  and  in  Southern  California,  is  in  full 
use  and  irrigating  to  full  capacity  (probably  nearly  three  million 
acres  irrigated,  as  much  if  not  more  than  in  any  other  State).17 
This  has  been  accomplished  under  that  part  of  the  California 
doctrine  which  upholds  appropriation  upon  public  land,  most  large 
California  irrigation  systems  being  operated  under  appropriative 
rights  of  long  standing,  which  were  originally  acquired  while  the 
land  was  public.  The  California  doctrine,  since  permitting  ap- 
propriation upon  public  land,  has  not  stood  in  the  way.  New 
extension  of  irrigation  will  be  in  the  storage  of  storm  waters,  and 
in  the  use  of  the  waters  of  the  northern  part  of  the  State,  (Sacra- 
mento Valley),  as  to  neither  of  which  has  there  been  much  attempt 
until  the  last  few  years,  because  there  had  been  no  call  for  it. 
These  now  are  proceeding  by  grant  (riparian  owners  usually  sell 
their  rights  for  five  hundred  to  one  thousand  dollars),  prescription 
(that  is,  riparian  owners  frequently  do  not  stand  on  their  rights), 
and  condemnation:  matters  now  in  experiment  and  in  course  of 
being  worked  out.  A  few  big  riparian  proprietors  holding  exten- 
sive ranches  under  Mexican  grants  have  barred  extension  in  some 
places,  but  so  far  as  the  public  is  concerned  it  is  but  resulting  in 
a  change  of  promoters,  for  these  riparian  holdings  are  coming  to 
be  made  the  basis  of  distributing  systems  by  these  riparian  owners 
themselves.  And  of  an  importance  not  now  appreciated  are  the 
little  streams  that  cannot  be  made  the  basis  of  extended  projects 
but  can  water  neighboring  farms  along  their  banks;  and  further, 
the  hundreds  of  little  streams  in  nonirrigating  regions,  where  the 

16  Infra,  sec.  739.  sign  of  her  irrigation  works,  but  that 

17  "The    State   of   California,   con-  State    is    also    superior    to    all    other 
stituting  a  large  and  important  part  States    and    Territories    of    the    arid 
of  the  field  where  the  art  of  irrigation  West  in  her  method  of  applying  and 
is  practiced,  is  also  the  great  model  utilizing  the  water.     It  is  safe  to  say 
for  the  rest  of  the  region  regarding  that   California   owes   the   larger  por- 
the  practical  development  of  its  water  tion  of   the  prominence  which  it  oc- 
supply,  and  in  the  use  of  water  as  ap-  cupies  to-day  to  the  results  of  irriga- 
plied    to    the    purpose    of    irrigation.  tion."     From    Kinney    on    Irrigation, 
California   is   not   only   ahead   in   the  sec.  339.    (Mr.  Kinney  is  a  member  of 
development  of  her  water  supply  and  the  Salt  Lake  Bar.     The  quotation  is 
the  number,  size  and  boldness  of  de-  condensed  from  the  whole  section.) 

Water  Bight* — 9 


130     (3d  ed.)     Pt.  II.     CALIFORNIA  -  COLORADO  DOCTRINES.          §  113 

law  of  riparian  rights  is  now  (legally  speaking)  the  sole  law.  In 
such  cases  the  beneficial  principles  of  the  riparian  system  will 
surely  show  their  force  in  the  public  interest  as  settlement  ad- 
vances. It  is  significant  that  the  California  court,  in  establishing 
its  new  law  of  percolating  water,  avowedly  departing  from  prece- 
dent and  actuated  wholly  by  the  desire  to  find  upon  principle  a 
system  based  upon  justice  and  beneficial  result  to  the  State,  has 
(after  having  first  made  some  tentative  advances  toward  the  law 
of  exclusive  rights  by  appropriation)  built  up  a  system  for  per- 
colating water  which,  one  can  now  see,  very  closely  resembles  the 
common  law  of  riparian  rights.18 

The  law  of  correlative  use  between  riparian  proprietors  is  the 
basis  of  the  civil  law  as  well  as  the  common  law;  and  the  common 
law  of  riparian  rights  (while,  because  unsuited  to  unsettled  regions, 
and  not  a  law  for  big  projects,  hitherto  unpopular  with  the  people, 
and  cannot  be  expected  to  become  popular  until  the  regions  are  well 
settled  up)  is  not  regarded  by  the  courts  (with  appropriation  for 
public  land)  as  hostile  to  irrigation,  where  the  system  prevails 
under  what  is  called  the  California  doctrine,19  the  origin  of  which 
it  is  now  our  object  to  describe. 

(3d  ed.) 

§  113.  Riparian  Rights  Before  Lux  v.  Haggin. — The  chief 
question  in  the  early  days  was,  as  previously  set  forth,  whether 
rights  could  be  obtained  on  public  land.  It  was  immediately  held 
in  California  that  the  possessory  system  applied  to  nothing  already 
in  private  hands;  that  the  free  and  untrammeled  action  of  the 
pioneers  upon  public  land  must  not  encroach  upon  private  owners ; 
that  private  land,  with  all  its  accustomed  rights,  was  as  secure 
in  California  as  elsewhere  in  the  Union.  This  was  evidenced  by 
the  rule  that  miners  could  not  appropriate  waters  already  in  use 
by  agriculturists,  nor  enter  and  build  a  ditch  on  the  farmer's  land, 
which  was  always  held  a  trespass,  despite  the  legislative  attempt 
in  the  Possessory  Act  to  enact  the  contrary.20  That  the  right  to 
appropriate  mines  could  not  be  exercised  on  another's  private  land 
was  definitely  and  forever  settled  by  Judge  Field  in  Biddle  Boggs 
v.  Merced  Mining  Co.21  "There  is  something  shocking  to  all  our 

18  Infra,  sees.  1090,  1104.     See  es-  19  Willey  v.   Decker,   11   Wyo.   496, 

pecially  Miller  v.  Bay  Cities  W.  Co.,  100  Am.  St.  Rep.  939,  73  Pac.  210. 
157  Ca'l.  256, 107  Pac.  115,  27  L.  R.  A.,  20  Supra,  sec.  85. 

N.  S.,  772;  Hudson  v.  Dailey  (1909),  21  14  Cal.  379,  10  Morr.  Min.  Rep. 

156  CaL  617,  105  Pac.  748.  334, 


§113  Ch.  6.     HISTORICAL— 1866  TO  THE  PRESENT.     (3d  ed.)     131 

ideas  of  the  rights  of  property,"  he  there  said,  "in  the  proposition 
that  one  man  may  invade  the  possessions  of  another,  dig  up  his 
fields  and  gardens,  cut  down  his  timber  and  occupy  his  land,  under 
the  pretense  that  he  has  reason  to  believe  there  is  gold  under  the 
surface,  or  if  existing,  that  he  wishes  to  extract  it  and  remove  it." 
Upon  the  same  lines,  it  was  consistently  ruled  that  there  could 
be  no  appropriation  of  rights  of  way. over  land  in  private  hands, 
nor  of  water  flowing  there,22  nor  of  water  on  public  land  already 
appropriated  by  another.23 

It  was  so  ruled  in  the  earliest  decisions.  In  Irwin  v.  Phillips,24 
the  original  precedent  upholding  public  land  appropriation,  it  was 
said:  "If  it  is  upon  a. stream,  the  waters  of  which  have  not  been 
taken  from  their  bed,  they  cannot  be  taken  to  his  [meaning  the 
landowner's]  prejudice."  In  the  second  case  upon  water- rights,25 
the  court  said:  "It  results  from  the  consideration  we  have  given 
the  case,  that  the  right  to  mine  for  the  precious  metals  can  only 
be  exercised  upon  public  lands;  that  although  it  carries  with  it 
the  incidents  of  the  rights,  such  as  the  use  of  wood  and  water, 
those  incidents  must  also  be  of  the  public  domain  in  like  manner 
as  the  lands."  In  the  third  case  in  the  reports  the  court  said 
water- rights  may  exist  "upon  the  ground  of  prior  location  upon  the 
land. "  *  In  the  next  volume  of  the  reports  the  court  said :  ' '  We 
have  recognized  the  right  to  appropriate  the  water  where  no- ripa- 
rian rights  intervene " ; 2  and  again,  in  another  case  in  the  same 
volume:  "Possession  or  actual  appropriation  must  be  the  test  of 
priority  in  all  claims  to  the  use  of  water,  whenever  such  claims  are 
not  dependent  upon  the  ownership  of  the  land  through  which  the 
water  flows. ' '  3  This  passed  into  clear  and  actual  decision  in  1857 
in  Crandall  v.  Woods,4  holding  that  the  new  rule  was  by  no  means 
exclusive  of  common-law  riparian  rights,  and  that  those  rights 
attached  to  the  land  through  which  a  stream  flowed,  in  favor  of 
settlers  thereon,  against  all  but  appropriations  actually  made  be- 

22  Infra,  sees.  221  et  seq.,   227  et  3  Kelly  v.  Natoma  W.  Co.,  6  Cal. 
seq.  108. 

23  Infra,  sec.  299  et  seq.  And   Wixon   v.   Bear  River  Co..   24 

24  5  Cal.  140,  63  Am.  Dec.  113,  15  Cal.  367,  85  Am.  Dec.  69.  1  Morr.  Min. 
Morr.  Min.  Rep.  178.  Rep.   656;    Ferrea   v.   Knipe,   28    Cal. 

25  Tartar  v.   Spring  Creek  W.   Co.,  340,  87  Am.  Dec.  128,  and  other  cases. 
5  Cal.  395,  14  Morr.  Min.  Rep.  371.  See  cases  cited  in  Lux  v.  Haggin,  69 

1  Hill   v.   Newman,   5   Cal.   445,   63  Cal.   255,    10   Pae.    674;    Pomeroy   on 
Am.  Dec.  140,  4  Morr.  Min.  Rep.  513.  Riparian  Rights,  sec.   109. 

2  Conger  v.  Weaver,  6  Cal.  548,  65  .4  g    Cal.    136;    I    Morr.    Min.    Rep. 
Am.  Dec.  528,  1  Morr.  Min.  Rep.  594.  604. 


132     (3ded.)     Pt.IL     CALIFOENIA-  COLOEADO  DOCTEINES.          §113 

fore  the  settlement  thereon.  It  was  said  by  Chief  Justice  Murray 
in  that  case :  ' '  If  the  rule  laid  down  in  Irwin  v.  Phillips  is  correct 
as  to  the  location  of  mining  claims  and  water  ditches  for  mining 
purposes,  and  priority  is  to  determine  the  rights  of  the  respective 
parties,  it  is  difficult  to  see  why  the  rule  should  not  apply  to  all 

other  cases  where  land  or  water  had  been  appropriated 

Suppose  he  had  located  a  farm  and  the  water  passing  through  his 
land  was  necessary  for  the  purpose  of  irrigation,  is  not  this  pur- 
pose just  as  legitimate  as  using  the  water  for  mining?  It  may 
or  may  not  be  equally  as  profitable,  but  irrigation  for  agricultural 
purposes  is  sometimes  necessary  to  supply  natural  wants,  while 
gold  is  not  a  natural,  but  an  artificial,  wan,t,  or  a  mere  stimulant 
to  trade  and  commerce.  If  it  is  understood  that  the  location  of 
land  carries  with  it  all  the  incidents  belonging  to  the  soil,  those 
who  construct  water  ditches  will  do  so  with  reference  to  the  appro- 
priations of  the  public  domain  that  have  been  previously  made, 
and  the  rights  that  have  been  already  acquired,  with  a  full  knowl- 
edge of  their  own  rights  as  against  subsequent  locators."  Cran- 
dall  v.  Woods  very  distinctly  decides  that  as  between  an  occupant 
of  riparian  land  and  a  subsequent  appropriator  of  the  waters  of 
the  stream,  the  former  may  assert  the  riparian  right,  and  was  so 
decided  with  the  very  view  of  protecting  irrigation  in  the  future, 
though  leaving  open  in  the  case  whether  irrigation  be  proper. 
This  is  the  first  Western  case  dealing  with  irrigation  at  all,  and 
it  upheld  the  riparian  right.  Crandall  v.  Woods  was  affirmed  in 
a  later  case  in  the  same  volume.6 

Throughout  the  cases  up  to  Lux  v.  Haggin  this  was  asserted 
consistently,  and  even  actually  decided  repeatedly.6 

It  had  passed  into  statute.  The  act  of  Congress  of  1866  con- 
tained the  proviso7  that  appropriators  of  water  interfering  with 
the  possession  of  settlers  were  liable  in  damages  to  the  settlers. 

6  Leigh   v.    Independent   D.    Co.,   8  land!     Or,  finally,  was  it  only  when  a 

Cal.  328,  12  Morr.  Min.  Eep.  97.  patent  actually  issued  to  him  for  the 

The     point     which    gave    difficulty  land?     See  infra,  sec.   261. 
was,   When  did  the  land  become  pri-  6  Among   others,   Ferrea   v.   Knipe, 
vate  respecting  waters  thereon?     Was  28     Cal.     340,     87     Am.     Dec.     128; 
it    from    the   mere    taking    possession  Creighton    v.    Evans,    53    Cal.    55,    8 
by  the  settler?     Or  was  it  from  the  Morr.   Min.   Eep.    123;    Pope   v.   Kin- 
date  he  entered  an  application  for  the  man,  54  Cal.  3;  Zimmler  v.  San  Luis 
land   in   the   land   office?     Or   was   it  etc.   Co.,   57    Cal.    221;    Anaheim   etc. 
when  he  made  final  proof  in  the  land  Co.  v.   Semi-Tropic  Co.,   64  Cal.   185, 
office?     Or    was    it    when    he    got    a  30  Pac.  623. 
certificate  from  the  land  office  of  full  1  Quoted  supra,  sec.  94. 
payment  to  the  United  States  for  tha 


§  113  Ch.  6.     HISTORICAL— 1866  TO  THE  PRESENT.     (3d  ed.)     133 

A  similar  provision  is  found  in  a  California  statute  of  1863.8 
Moreover,  the  California  Civil  Code,  in  its  provisions  upon  appro- 
priation enacted  in  1872,  had  ended  with  the  provision  in  section 
1422,  "The  rights  of  riparian  proprietors  are  not  affected  by  the 
provisions  of  this  title."  That  not  more  was  said  was  because ^the 
rights  of  private  land  had  not  been  much  involved  in  the  litiga- 
tion, of  which  the  code  was  merely  declaratory.  While  Lux  v. 
Haggin  was  pending  numerous  attacks  were  made  in  the  legislature 
upon  this  section,  but  were  wholly  unsuccessful.  There  were  three 
such  attacks  defeated  in  1881,  and  five  in  1883.  In  the  California 
constitutional  convention  of  1879  some  similar  attacks  on  riparian 
rights  were  made  in  debates,  but  without  success.9 

While  the  protection  of  common-law  riparian  rights  was  thus 
consistently  the  attitude  of  the  California  law  whenever  occasion 
demanded,  there  was,  however,  in  the  pioneer  days,  owing  to  the 
great  unsurveyed  expanse  of  the  public  domain,  and  the  lack  of  laws 
for  obtaining  patent,  little  occasion  to  demand  it.  Private  riparian 
land  was  seldom  involved  in  the  litigation,  and  even  when  in- 
volved, its  riparian  rights  were  not  often  asserted,  the  riparian 
owners  usually  having  public  land  appropriations  themselves,  so 
that  the  result  would  have  been  the  same  under  either  rule.10 
Owing  to  the  great  preponderance  of  public  land  litigation  it  had, 
before  Lux  v.  Haggin,  become  the  prevalent  impression  that  there 
had  been  a  rejection  in  toto  in  California  of  the  common  law  of 
riparian  rights.11 

8  Stats.  1863-64,  p.  375,  sec.  10.  appropriation  of  water,  the  court  con- 

»  See   Debates   of    1878-79,   vol.   1,  fined   its   inquiry   to   the   existence   or 

pp.  81,  95,  101,  143,  151,  165.  nonexistence    of    the    facts    alleged," 

10  E.  g.,  Ferrea  v.  Knipe,   28   Cal.  citing,   for   example,   McDonald   v.   B. 

340,  87  Am.  Dec.   128.     "This  is  the  R.  Co.,  13  Cal.  220,  1  Morr.  Min.  Rep. 

first  case  in  these  reports  after  that  626. 

of  Crandall  v.  Wood,  8  Cal.  136,  1  H  See  dissenting  opinions  in  Lux 
Morr.  Min.  Rep.  604,  where  the  con-  v.  Haggin.  In  Cal.  Stats.  1878,  p. 
troversy  concerning  water-rights  was  1070,  the  legislature  called  upon  Con- 
between  two  farmers,  or  parties  en-  gress  to  abrogate  riparian  rights  by 
gaged  in  ranching,  the  plaintiff  claim-  reserving  them  from  patents, 
ing  under  a  settler."  Yale  on  Min-  "There  seems  to  be  a  prevalent 
ing  and  Water  Rights,  199.  The  opinion  that  the  common-law  doctrines 
learned  author  further  remarks  that  concerning  'riparian  rights'  of  'ripa- 
the  result  in  that  case  would  be  the  rian  proprietors'  upon  natural  streams 
same  under  either  rule.  In  Lux  v.  have  no  existence  whatever  in  the  law 

Haggin   the  court   says   that  in   some      of    California This    opinion    is 

of    the    cases,    "where    the    riparian  wholly    unsupported    by    judicial    au- 

owner  claimed  in  his  pleading  and  re-  thority."     Pomeroy        on        Riparian 

lied  at  the  trial  on  an  actual  prior  Rights,  sec.  108,  p.  175. 


134     (3ded.)     Pt.  II.     CALIFORNIA- COLOE ADO  DOCTRINES.          §114 

(3d  ed.) 

§  114.     Same. — Outside  of  California  the  Nevada  court,  in  Van 

Sickle  v.  Haines,12  already  considered  at  length,13  had  gone  even 
to  the  length  of  holding  that  the  passage  of  riparian  land  from 
the  public  domain  into  private  title  actually,  because  of  its  riparian 
rights,  revoked  even  prior  appropriations  existing  at  the  time  (not 
now  the  law  anywhere),  and  even  this  extreme  position  was  ap- 
proved by  the  chief  justice  of  Montana,14  and  was  followed  in  the 
Federal  courts.15  The  extreme  position  taken  by  Van  Sickle  v. 
Haines  was  overruled  in  Nevada16  while  Lux  v.  Haggin  was  pend- 
ing; but  the  overruling  case  did  not  involve  land  titles  prior  to, 
but  only  those  acquired  subsequent  to,  the  diversion,  and  hence 
did  not  present  the  situation  of  Lux  v.  Haggin.17 

In  Colorado  there  had,  at  the  time  of  Lux  v.  Haggin,  been  de- 
cisions wholly  opposed  to  riparian  rights,  but  they,  like  the  Van 
Sickle  case,  did  not  on  their  facts  involve  land  titles  prior  to, 
but  only  those  acquired  after,  the  diversion.  Notice  may  also  be 
taken,  however,  of  an  early  Colorado  statute  preserving  streams  to 
the  holders  of  possessory  rights  upon  their  banks.  For  convenience, 
we  consider  these  in  a  later  section. 

In  the  supreme  court  of  the  United  States,  previous  to  Lux  v. 
Haggin,  the  court,  as  already  shown,  had  regarded  the  rule  of 
appropriation  as  "one  of  priority  to  rights  on  public  lands.18  So  far 
as  private  riparian  land  was  concerned,  they  had  protected  the 

12  7  Nev.  249,  15  Morr.  Min.  Rep.      other  side  in  favor  of  the  appropriator 
201.  as  leading  counsel  in  Lux  v.  Haggin. 

13  „  S7  The   Nevada    Federal   decrees   were 

again  before  court  in  Union  Mill  etc. 

l*  Thorp  v.  Freed,  1  Mont.  689.  Co.   v.    Dangberg,    81    Fed.    73,    after 

,.  TT   .       A,.      n          -c,      -oa  tae    State    court    had    repudiated    the 

17*     vTc ^m-5°-Vi^7ir%    A?  common     law-     JudSe     Hawley     held 

JJ-6'    Sed<  QCnaS-    ?°a   14>371>-n8    ^orr'  them  binding  as   res   adjudicata,  but 

Mm.  Rep    90    and  Same  v.  Dangberg  concluded   that   on   the   facts,   the   re- 

2   Saw 4oO    Fed    Cas    No.   14,3,0,   8  gul     wouW  be     h     game        fl'      either 

Morr.  Mm    Rep.  113,  both  concerning  ^  common  ^  Qr  iation 

J,lg  tS^m£7aClo;Q  V'  Ndwm.Mta.  is  The  chief  question  had  been  be- 
Co  47  Fed.  199,  concerning  rights  twegn  riyal  appr4opriatorS)  and  in  rec. 

ognizing  their  rights,  Judge  Field  had 

16  Jones  v.   Adams,   19   Nev.   78,   3  sai<3 .   "The  government  being  the  sole 
Am.  St.  Rep.  788,  6  Pac.  442.  proprietor  of  the  public  lands,  whether 

17  In  Van  Sickle  v.  Haines,  Judge  bordering  on  the  streams  or  otherwise, 
John  R.  Garber,  then  on  the  supreme  there  was  no  occasion  for  the  appli- 
bench    in    Nevada,    said    against    the  cation  of  the  common-law  doctrine  of 
appropriator:      "On    every    point    es-  riparian    proprietorship    with    respect 
sential  to  the  case  of  the  petitioner,  to     the     waters     of     those    streams." 
not   merely   the   weight   of   authority,  Field,  J.,  in  Atchison  v.  Peterson,  20 
but    all    the    authorities,    are    against  Wall.   (87  U.  S.)   507,  22  L.  Ed.  414, 
him."     Fifteen  years  later  he  led  the  1  Morr.  Min.  Rep.  583. 


§  115  Ch.  6.     HISTORICAL— 1866  TO  THE  PRESENT.     (3d  ed.)     135 

existing  appropriates  against  later  patent  to  riparian  land,19  and 
held  that  the  act  of  1866  so  affirmed  in  order  to  prevent  the  existing 
appropriator  from  losing  his  right  on  a  later  settlement  and  patent- 
ing of  the  land  to  someone  else.  But  whether  a  settler  could,  when 
his  land  became  private,  assert  his  riparian  right  against  new  ap- 
propriators  had  been  expressly  left  open  in  the  United  States 
supreme  court's  decisions.  In  Basey  v.  Gallagher,20  it  was  said: 
''Neither  party  has  any  title  from  the  United  States.  No  question 
as  to  the  right  of  riparian  proprietors  can  therefore  arise.  It  will 
be  time  enough  to  consider  those  rights  when  either  party  has  ob- 
tained the  patent  from  the  government."21 

(3d  ed.) 

§  115.     Lux  v.  Haggin. — A  case  arose  out  of  the  use  of  the 

Kern  river  for  irrigation — the  case  of  Lux  v.  Haggin,22  decided  in 
1886.  The  defendant,  J.  B.  Haggin,  having  organized  an  irriga- 
tion company,  claimed  the  right  to  divert  the  entire  waters  of  the 
Kern  river  by  an  appropriation  to  that  effect,  denying  that  any 
vested  rights  which,  under  the  rule  of  riparian  rights,  would  have 
prevented  this,  could  be  recognized  in  California.  It  is  probably 
the  most  extended  opinion  in  the  California  reports,  covering,  as  it 
does,  two  hundred  pages.  The  previous  cases  had  almost  all  arisen 
out  of  mining,  but  here  was  one  in  the  San  Joaquin  Valley,  and  it 
showed  how  the  law  must  consider  water-rights  of  immense  value, 
though  where  mining  was  in  no  way  concerned.  The  court  said, 
emphatically:  "The  doctrine  of  appropriation  so  called  is  not  the 
doctrine  of  the  common  law. ' ' 23  But  while  a  rule  independent  of 
the  common  law,  it  is  not  destructive  of  the  rule  of  riparian  rights, 
the  court  held.  Those  rights  attach  to  all  land  as  soon  as  it  be- 
comes private,  remaining  subject  to  appropriations  made  prior 
to  that  time,24  but  free  from  all  hostile  appropriations  thereafter 
made.  Citing  Crandall  v.  Woods,25  the  court  declared  this  always 

19  Broder    v.    Natoma    Water    Co.,  hence  in   court   for  eight  years.     Mr. 
101  U.  S.  274,  25  L.  Ed.  790,  5  Morr.  Justice  McKinstry  wrote  the  opinion. 
Min.  Rep.  33.  23  Pages   387-399. 

20  20  Wall.   (87  U.  8.)   670,  22  L.  24  As   to   patents   before   1866,   the 
Ed.  452,  1  Morr.  Min.  Rep.  683,  Field,  court     distinguished     Van     Sickle     v. 
J.  Haines,  though  somewhat  reluctantly, 

21  See  infra,  sec.  261.  on  the  ground  that  in  Lux  v.  Haggin 

22  69    Cal.    255,    10    Pac.    674.     A  the    patents   had    all   been   issued,    or 
former  opinion  to  the  same  effect,  not  related    back    to    times,    prior    to    the 
officially    reported,    being    withdrawn  appropriation,  'while   the   reverse   was 
on  rehearing,  is  given  in  4  Pac.  919.  the  fact  in  the  Van  Sickle  case. 

The    case    arose    in    1878,    and    was          25  Supra,  sec.  113. 


136     (3ded.)     Pt.H.     CALIFOENIA  -  COLORADO  DOCTRINES.          §116 

to  have  been  the  law  in  California.  Section  1422  of  the  Civil 
Code  was  held  to  be  merely  declaratory  of  this.1  Riparian  rights 
would  further  be  protected  on  constitutional  principles;  to  deny 
them  would  be  taking  the  landowner's  property  without  due  proc- 
ess of  law,  and  an  unwarranted  interference  by  the  State  with 
the  primary  disposal  of  the  Federal  lands.2  The  contentions  that 
the  section  of  the  Civil  Code3  providing  that  "The  rights  of 
riparian  proprietors  are  not  affected  by  the  provisions  of  this  title/' 
merely  referred  to  riparian  rights  attaching  to  Mexican  grants, 
which  had  never  been  public  land,  or  else  to  riparian  rights  exist- 
ing at  the  date  of  the  enactment  of  the  Civil  Code,  the  Civil  Code 
having  no  prospective  operation,  were  rejected.  The  system  of 
riparian  rights  was  declared  to  be  in  effect  in  California  in  full 
force,  subject  only  to  prior  appropriations  made  before  the  land 
became  private.4  The  court  decided  against  Haggin.  That  ri- 
parian rights  were  not  done  away  with  by  the  law  of  appropriation 
had  all  along  been  the  contention  of  text-writers.5  It  was  but 
a  reassertion  regarding  water  of  what  Boggs  v.  Merced  Co.  had 
once  for  all  established  regarding  mines  on  private  land. 

(3d  edj 

§  116.  Result  of  Lux  v.  Haggin. — Riparian  rights  are  now 
firmly  established  in  California  side  by  side  with  the  law  of  appro- 
priation, the  former  for  public  land  and  the  latter  for  private 
land.  In  theory,  the  two  systems  are  of  equal  importance,  and 
receive  equal  consideration  from  the  court;  but  practically,  since 
the  larger  part  of  the  agricultural  lands  in  California  have  now 
passed  into  private  hands,  the  common  law  of  riparian  rights  has 
a  wider  application  so  far  as  concerns  acquisition  of  new  uses 
hereafter. 

1  Pages     368,     375,     380.     "It     is          2  "Neither  a  grantee  of  the  United 

difficult   to    believe    that    the    section,  States,  nor  the  grantee   of  a   private 

so  far  as  it  applies  to  riparian  lands  person,    who    was    a    riparian    owner 

not  those  of  the  State,  is  other  than  when  the  code  was  adopted,  need  rely 

declaratory    of    the    pre-existing   law.  for  protection  on  section  1422.     Such 

It   certainly   was   intended   to   be   de-  persons    are    protected    by    constitu- 

claratory   in   so   far   as   it   announces  tional   principles."  Lux   v.   Haggin. 
the  protection   of   all  private  persons          3  Sec.  1422. 

who     had     acquired     riparian     rights          4  See  Lindley  on  Mines,  2d  ed.,  sec. 

from    any    source    before    the    provi-  838,  p.  1504. 

sions   of    the    code    went    into    opera-          5  Pomeroy     on     Riparian     Rights, 

tion,  since   (if  the  common-law  right  chapters    III,    VII;     Blanchard    and 

existed)    such   persons  were   protected  Weeks  on  Mining  Claims  and  Water 

independent  of  the  section."     Lux  v.  Rights,     p.     696;     Yale     on     Mining 

Haggin.  Claims  and  Water  Rights,  p.   175. 


S  117  Ch.  6.     HISTORICAL— 1866  TO  THE  PRESENT.     (3d  ed.)     137 

In  1887,  the  year  following  the  decision  in  Lux  v.  Haggin,  sec- 
tion 1422  of  the  Civil  Code,  protecting  the  rights  of  riparian  pro- 
prietors, was  repealed ; 6  but  as  Lux  v.  Haggin  was  decided  largely 
independent  of  that  section,  the  law  in  California  remains  undis- 
turbed by  this  repeal.7  Many  cases  since  then  have  affirmed  Lux 
v.  Haggin.8  The  result  in  California  is  that  the  law  of  appro- 
priation is  confined  to  acquisitions  on  public  lands,  and  the  com- 
mon law  of  riparian  rights  is  becoming  the  general  law  for  streams 
which  have  not  hitherto  been  diverted,  and  which  now  in  some 
part  usually  flow  through  private  land.9  Most  emphatically  is  it 
asserted  in  the  late  case  of  Miller  v.  Madera  etc.  Co.10 

Recent  cases  in  California  involve  chiefly  the  law  of  riparian 
rights,  and  the  few  decided  under  the  law  of  appropriation  show 
a  decided  tendency  to  cease  citing  the  older  cases  on  appropriation, 
assuming  the  doctrines  there  laid  down  as  established  and  familiar 
law.  This  indicates  that  in  California  the  law  of  appropriation 
has  taken  its  place  as  a  complete  system,  diminishing  in  impor- 
tance, past  the  formative  period  in  which  the  system  may  be  said 
still  to  remain  in  the  younger  States  where  it  is  the  sole  law. 

(3d  ed.) 

§  117.    Riparian  Rights  Upheld  in  Ten  States  and  Territories. 

The  combined  system  of  appropriation  and  riparian  rights  existing 
side  by  side  (the  former  regarding  streams  on  public  lands  and 
the  latter  for  all  other  streams),  which,  like  the  law  of  appro- 
priation, was  first  firmly  established  in  California,  and  has  been 
called  the  "California  doctrine,"11  is  in  force  in  the  following 
jurisdictions:  California,  Kansas,  Montana,  North  Dakota,  Okla- 

«  Cal.  Stats.   1887,  p.  144.  St.  Rep.  35,  70  Pac.  663,  74  Pac.  766, 

7  "The  repeal  of  a  statute  will  not  64  L.   R.   A.   236,   as   the   decision  in 
destroy    vested    rights     [to    water]."  question,  but  such  reference  by  him  is 
Knowles,    J.,    in    Thorp    v.    Freed,    1  without    warrant.     On    the    contrary, 
Mont.   658.  the    California    court    has   voluntarily 

8  Infra,     sec.     117.     Testimony    of  adopted  for  its  new  law  of  percolating 
Congressman  J.  C.  Needham,  in  Kan-  water    a   system   very   similar   to   the 
sas  v.  Colorado,  206  U.  S.  46,  27  Sup.  law  of  riparian  rights.     See  Miller  v. 
Ct.  Rep.  655,  51  L.  Ed.  956:    "I  have  Bay  Cities  Co.,  157  Cal.  256,  107  Pac. 
been   out    of    practice    for    six   years,  115,  27  L.  R.  A.,  N.  S.,  772;  Hudson 
and  cannot  now  name  any  decision  of  v.   Dailey    (1909),   156   Cal.   617,   105 
the  supreme  court  of  the  State  of  Cali-  Pac.  748. 

fornia  which  intimated  that  the  court  9  Infra,  sec.   231,  appropriation  on 

regretted  the  decision  in  Lux  v.  Hag-  private  land. 

gin,  but  I  could  find  it."     It  will  be  10  155  Cal.  59,  99  Pac.  502,  22  L. 

hard   for  him  to   find  what   does  not  R.  A.,  N.  S.,  391. 

exist.     He    elsewhere    refers    to    Katz  u  Willey  v.  Decker,   11  Wyo.   496, 

v.  Walkinshaw,  141  CaL  116,  99  Am.  100  Am.  St.  Rep.  939,  73  Pac.  210. 


138     (3<3  ed.)     Pt.  II.     CALIFORNIA  -  COLORADO  DOCTRINES.          §  117 


homa  (possibly),  South  Dakota,  Washington,  and  partially  in 
Nebraska,  Oregon  and  Texas,  and  has  been  applied  in  the  supreme 
court  of  the  United  States.12 


12  (This  list  is  based  upon  the  hold- 
ings of  the  courts,  and  at  the  same 
time,  it  must  be  noted  that  the  legis- 
latures in  most  of  these  States  have 
very  recently,  as  below  set  forth, 
adopted  statutes  in  many  ways  op- 
posed to  the  common  law,  but  which 
their  courts  have  not  yet  reviewed.) 

California. — Lux  v.  Haggin,  69 
Cal.  255,  4  Pac.  919,  10  Pac.  674. 
See,  also,  Crandall  v.  Woods,  8  Cal. 
136,  1  Morr.  Min.  Rep.  604;  Van 
Bibber  v.  Hilton,  84  Cal.  585,  24  Pac. 
308,  598;  Alta  Land  Co.  v.  Hancock, 
85  Cal.  219,  20  Am.  St.  Rep.  217,  24 
Pac.  645;  Modoc  etc.  Co.  v.  Booth,  102 
Cal.  151,  36  Pac.  431;  McGuire  v. 
Brown,  10(5  Cal.  660,  39  Pac.  1060, 
30  L.  R.  A.  384;  Hargrave  v.  Cook, 
108  Cal.  72,  41  Pac.  18,  30  L.  R.  A. 
390;  San  Luis  Water  Co.  v.  Estrada, 
117  Cal.  168,  48  Pac.  1075 ;  Baxter  v. 
Gilbert,  125  Cal.  580,  58  Pac.  129, 
374;  Bathgate  v.  Irvine,  126  Cal.  135, 
77  Am.  St.  Rep.  158,  58  Pac.  442; 
Rice  v.  Meiners,  136  Cal.  292,  68  Pac. 
817;  Anaheim  Water  Co.  v.  Fuller, 
150  Cal.  327,  88  Pac.  978,  11  L.  R. 
A.,  N.  S.,  1062;  Duckworth  v.  Wat- 
sonville  Water  Co.,  150  Cal.  520,  89 
Pac.  338 ;  Huff ner  v.  Sawday,  153  Cal. 
86,  94  Pac.  424;  Rickey  L.  &  C.  Co. 
v.  Glader  (1908),  153  Cal.  179,  94 
Pac.  768;  Miller  v.  Madera  etc.  Co., 
155  Cal.  59,  99  Pac.  502,  22  L.  R.  A., 
N.  S.,  391 ;  Hudson  v.  Dailey,  156  Cal. 
617,  105  Pac.  748;  Miller  v.  Bay 
Cities  W.  Co.,  157  Cal.  256,  107  Pac. 
115,  27  L.  R.  A.,  N.  S.,  772;  San 
Joaquin  etc.  Co.  v.  Fresno  etc.  Co., 
158  Cal.  626,  112  Pac.  182.  In  the 
Federal  courts;  California  P.  &  A. 
Co.  v.  Enterprise  Co.,  127  Fed.  741; 
A.nderson  v.  Bassman,  140  Fed.  14. 

Kansas. — Clark  v.  Allaman,  71  Kan. 
206,  80  Pac.  571,  70  L.  R.  A.  971. 
See,  also,  Mo.  Pac.  Ry.  Co.  v.  Keys, 
55  Kan.  205,  49  Am.  St.  Rep.  249, 
40  Pac.  275 ;  Parker  v.  City  of  Atchi- 
son,  58  Kan.  29,  48  Pac.  631;  Mon- 
tague v.  Bd.  Co.  Com.,  7  Kan.  App. 
160,  53  Pac.  145 ;  Campbell  v.  Grimes, 
62  Kan.  503,'  64  Pac.  62.  In  the 
Federal  courts,  Kansas  v.  Colorado, 


206  U.  S.  46,  27  Sup.  Ct.  Rep.  655, 
51  L.  Ed.  956. 

Montana. — Prentice  v.  McKay 
(1909),  38  Mont.  114,  98  Pac.  1081 
(affirming  Smith  v.  Denniff,  24  Mont. 
20,  81  Am.  St.  Rep.  408,  60  Pac.  398, 
50  L.  R.  A.  741).  Smith  v.  Denniff 
had  left  room  for  doubt,,  but  Prentice 
v.  McKay  seems  clear.  See,  also, 
Thorp  v.  Freed,  1  Mont.  651.  In  the 
Federal  courts,  Cruse  v.  McCauley,  96 
Fed.  369;  Howell  v.  Johnson,  89  Fed. 
556;  and  cf.  Willey  v.  Decker,  11  Wyo. 
496,  100  Am.  St.  Rep.  939,  73  Pac. 
210,  so  construing  Smith  v.  Denniff. 
Whether  riparian  rights  exist  in  Mon- 
tana was  recently  expressly  left  open 
in  Winters  v.  United  States,  74  C.  C. 
A.  666,  143  Fed.  740,  207  U.  S.  564, 
28  Sup.  Ct.  Rep.  208,  52  L.  Ed.  340, 
and  Morris  v.  Bean,  146  Fed.  423. 
See  17  Yale  Law  Journal,  585,  where 
Mr.  Justice  Hunt,  of  the  Montana 
Federal  court,  says  riparian  rights 
are  rejected  in  Montana.  However, 
the  case  above  now  seems  to  have  set- 
tled the  point. 

Nebraska. — Crawford  etc.  Co.  v. 
Hathaway,  60  Neb.  754,  67  Neb.  325, 
108  Am.  St.  Rep.  647,  60  L.  R.  A. 
889,  84  N.  W.  271,  93  N.  W.  781. 
See,  also,  Clark  v.  Cambridge  &  A. 
Irr.  Co.,  45  Neb.  798,  64  N.  W.  239; 
Eidemiller  Ice  Co.  v.  Guthrie,  42  Neb. 
238,  60  N.  W.  717,  28  L.  R.  A.  581; 
Slattery  v.  Harley,  58  Neb.  575,  79 
N.  W.  151;  Plattsmouth  Water  Co.  v. 
Smith,  57  Neb.  579,  78  N.  W.  275; 
Meng  v.  Coffey,  67  Neb.  500,  108  Am. 
St.  Rep.  697,  93  N.  W.  713,  60  L.  R. 
A.  910;  Dunn  et  al.  v.  Thomas,  69 
Neb.  683,  96  N.  W.  142 ;  McCook  I.  & 
W.  P.  Co.  v.  Crews,  70  Neb.  115,  102 
N.  W.  249;  Gill  v.  Lydick,  40  Neb. 
508,  59  N.  W.  104;  Barton  v.  Union 
Cattle  Co.,  28  Neb.  350,  26  Am.  St. 
Rep.  340,  44  N.  W.  454,  7  L.  R.  A. 
457;  Cline  v.  Stock,  71  Neb.  70,  98 
N.  W.  454,  102  N.  W.  265;  Kinkead 
v.  Turgeon,  74  Neb.  580,  104  N.  W. 
1061,  109  N.  W.  744,  1  L.  R.  A.,  N. 
S.,  762,  13  Ann.  Gas.  43.  The  doc- 
trine of  riparian  rights  is  the  sole 
doctrine  in  the  eastern  part  of  the 


§118 


Ch.  6.     HISTORICAL— 1866  TO  THE  PRESENT.     (3d  ed.)     139 


(3d  ed.) 

§  118.  Riparian  Rights  Rejected  in  Eleven  States  and  Terri- 
tories.— In  the  following  States  and  Territories  the  common  law 
of  riparian  rights  is  rejected  in  toto,  Lux  v.  Haggin  and  similar 
cases  being  either  not  considered,  or  commented  upon  and  con- 
sidered, but  rejected. 

The  early  California  decisions  had  long  been  practically  au- 
thority throughout  the  West  for  waters  on  the  public  domain,  and 


State,  and  riparian  rights  are  abro- 
gated by  statute  as  to  all  lands  pat- 
ented since  1889.  (Infra,  sec.  126.) 

North  Dakota. — Bigelow  v.  Draper, 
6  N.  D.  152,  69  N.  W.  570.  In  the 
Federal  courts,  Sturr  v.  Beck,  133 
U.  S.  541,  10  Sup.  Ct.  Rep.  350,  33 
L.  Ed.  761.  The  act  of  Congress  of 
June  11,  1906,  34  Stats.  234,  abro- 
gates riparian  rights  in  the  Black 
Hills  Forest  Reserve. 

Oklahoma. — Markwardt  v.  City  of 
Guthrie,  18  Okl.  32,  90  Pac.  26,  9  L. 
R.  A.,  N.  S.,  1150,  11  Ann.  Gas.  581, 
semble.  Town  of  Jefferson  v.  Hicks 
(1909),  23  Okl.  684,  102  Pac.  79, 
semble.  The  matter  has  not  been 
specifically  in  question,  but  the  latter 
says  in  passing:  "This  court  has  held, 
in  several  cases,  that  the  rights  of 
landowners  as  to  watercourses  and  as 
to  surface  water  are  determined  in 
this  jurisdiction  by  the  rules  of  the 
common  law." 

Oregon. — Carson  v.  Centner,  33  Or. 
512,  52  Pac.  506,  43  L.  R.  A.  130. 
See,  also,  Jones  v.  Conn,  39  Or.  30, 
87  Am.  St.  Rep.  634,  64  Pac.  855,  65 
Pac.  1068,  54  L.  R.  A.  630 ;  Hough  v. 
Porter,  51  Or.  318,  95  Pac.  732,  98 
Pac.  1081,  102  Pac.  728.  The  last 
case  cited,  in  establishing  a  new  doc- 
trine, below  considered,  for  Oregon, 
states  that  Taylor  v.  Welsh,  6  Or.  198, 
is  the  first  Oregon  case  bearing  upon 
riparian  rights.  A  long  list  of  the 
Oregon  cases  upon  the  subject  is  col- 
lected in  Hough  v.  Porter. 

South  Dakota. — Lone  Tree  D.  Co.  v. 
Cyclone  D.  Co.,  15  S/  D.  519,  91  N. 
W.  352;  Same  v.  Same  (S.  D.),  128 
N.  W.  596.  See,  also,  Metcalf  v. 
Nelson;  8  S.  D.  87,  59  Am.  St.  Rep. 
746,  65  N.  W.  911;  Stenger  v.  Tharp, 
17  S.  D.  13,  94  N.  W.  402 ;  Lone  Tree 
D.  Co.  v.  Rapid  City  E.  &  G.  L.  Co., 
16  S.  D.  451,  93  N.  W.  650.  See 
Driskill  v.  Rebbe,  22  S.  D.  242,  117 
N.  W.  135;  Redwater  Co.  v.  Reed 


(S.  D.),  128  N.  W.  702;  Redwater  Co. 
v.  Jones  (S.  D.),  130  N.  W.  85.  In 
the  Federal  courts,  Sturr  v.  Beck,  133 
U.  S.  541,  10  Sup.  Ct.  Rep.  350,  33 
L.,Ed.  761.  See  Rev.  Code,  sec.  278. 

Texas. — McGhee  etc.  Co.  v.  Hudson, 
85  Tex.  587,  22  S.  W.  398.  See,  also, 
Haas  v.  Choussard,  17  Tex.  588; 
Rhodes  v.  Whitehead,  27  Tex.  304, 
84  Am.  Dec.  631;  Tolle  v.  Correth, 
31  Tex.  362,  98  Am.  Dec.  540;  Flem- 
ing v.  Davis,  37  Tex.  173;  Baker  v. 
Brown,  55  Tex.  377;  Mud  Cr.  Irr.  A. 
&  M.  Co.  v.  Vivian,  74  Tex.  170,  11 
S.  W.  1078;  Barrett  v.  Metcalf,  12 
Tex.  Civ.  App.  247,  33  S.  W.  758; 
Cape  v.  Thompson,  21  Tex.  Civ.  App. 
681,  53  S.  W.  368;  Clements  v.  Wat- 
kins  Land  Co.,  36  Tex.  Civ.  App.«339, 
82  S.  W.  665;  Watkins  L.  Co.  v. 
Clements,  98  Tex.  578,  107  Am.  St. 
Rep.  653,  86  S.  W.  733,  70  L.  R.  A. 
964;  Santa  Rosa  etc.  Co.  v.  Pecas 
etc.  Co.  (Tex.  Civ.  App.),  92  S.  W. 
1016.  In  Texas  on  the  arid  lands 
riparian  rights  are  not  strictly  en- 
forced against  appropriators,  there 
being  a  different  rule  for  the  arid 
and  nonarid  lands.  Barrett  v.  Met- 
calf, 12  Tex.  Civ.  App.  247,  33  S.  W. 
758.  Arid  regions  in  Texas  are  de- 
fined in  Hall  v.  Carter,  33  Tex.  Civ. 
App,  230,  77  S.  W.  19,  as  those  por- 
tions where  rainfall  is  insufficient  for 
agricultural  purposes  and  irrigation  is 
necessary;  and  merely  that  irrigation 
would  be  beneficial,  though  not  neces- 
sary, is  insufficient.  See  Biggs  v. 
Leffingwell  (Tex.  Civ.  App.),  132  S. 
W.  902. 

Washington. — Benton  v.  Johncox. 
17  Wash.  277,  61  Am.  St.  Rep.  912,  49 
Pac.  495,  39  L.  R.  A.  107.  See,  also. 
Shotwell  v.  Dodge,  8  Wash.  337.  36 
Pac.  254;  Sander  v.  Wilson,  34  Wash. 
659,  76  Pac.  280 ;  City  of  New  What- 
com  v.  Fairhaven  L.  Co.,  24  Wash. 
493,  64  Pac.  735,  54  L.  R.  A.  190; 
Nesalhous  v.  Walker,  45  Wash.  621, 


140     (3ded.)     Pt.  II.     CALIFORNIA  -  COLORADO  DOCTRINES.          §118 

had  been  ratified  by  the  act  of  1866,  establishing  free  appropria- 
tion upon  public  land.  In  1872  Colorado  was  still  a  Territory,  and 
the  case  of  Yunker  v.  Nichols,  the  first  case  in  Colorado  upon  the 
subject,  arose  in  the  territorial  court.13  The  case  is  quoted  later 
herein  on  the  point  actually  asserted,  and  as  to  which  the  writer 
conceives  it  is  no  longer  law  in  any  jurisdiction.133  The  question 
was  not  one  of  appropriation  of  water,  but  of  right  of  way  for  a 
ditch.  There  were  three  opinions  given,  none  exactly  the  same, 
holding  that  an  irrigator  has  a  way  of  necessity  over  another's  land 
to  water.  It  did  not  involve  a  dispute  as  to  rights  in  the  water  it- 
self. But  the  court  was  emphatic  that  all  landowner  rights  what- 
soever are  subject  in  Colorado  to  the  necessity  of  those  diverting 
water  for  irrigation.  Though  hence  only  dictum  in  its  absolute  re- 
jection of  riparian  »ghts,  it  was  very  emphatic.  Mr.  Mills,  of  the 
Colorado  bar,  says  of  it : 14  ' '  It  practically  swept  away  the  common- 
law  doctrine  of  riparian  rights  as  applicable  to  Colorado,  long 
before  a  case  actually  arose  between  an  appropriator  of  water  for 
irrigation  and  a  riparian  claimant  along  the  natural  stream.  Such 
a  case  did  not  actually  arise  until  some  ten  years  later." 

In  the  next  case  after  Yunker  v.  Nichols,15  the  question  was  also 
of  .right  of  way  over  land  for  a  ditch,  not  of  riparian  right  to 
water.  The  prevailing  opinion  seems  to  be  against  the  Yunker  case 
as  to  a  way  of  necessity,  but  the  dissenting  opinion  of  Thatcher,  J., 
strongly  reasserts  it,  saying  that  it  "is  founded  on  the  imperious 
laws  of  nature,  with  reference  to  which  it  must  be  presumed  the 
government  parts  with  its  title."  In  the  next  case,16  the  extent 
of  the  easement  was  limited  "to  the  narrowest  limits,"  with  the 
least  possible  damage;  "it  has  been  well  said  that  the  necessity  of 

88   Pac.   1032;    Kendall  v.   Joyce,   48  rights,  citing  the  Western  cases,  was 

Wash.   489,   93   Pac.    1091;    Hollet   v.  urged    in    Wisconsin,    Huber    v.    Mer- 

Davis  (1909),  54  Wash.  326,  103  Pac.  kel,    117   Wis.   355,   98   Am.   St.   Rep. 

423;     Mason     v.     Yearwood     (Wash.  933,  94  N.  W.  354,  62  L.  R.  A.  589, 

1910),    108   Pac.   608.     In   Benton   v.  and  in  Illinois,  Druley  v.  Adam,  102 

Johncox,    the    court    cites    numerous  111.  202,  but  in  both  the  court  refused 

other  cases.  to  recognize  appropriation  at  all.     In 

United     States     Supreme     Court. —  Hawaiian   Islands  it  is  expressly  left 

Sturr  v.  Beck,  133  U.  S.  541,  10  Sup.  open  whether  the  common  law  of  ripa- 

Ct.    Rep.    350,    33    L.    Ed.    761,    is    a  rian  rights  is  in  force.     Wong  Long 

positive    decision    in    support    of    the  v.    Irwin    (1896),    10   Hawaii,    271. 
California    doctrine.     (Arose    on    ap-  13  1  Colo.   551,  8  Morr.  Min.  Rep. 

peal  from  Territory  of  Dakota.)     See,  64. 

also,   Winters  v.   United    States,    207          I3a  Infra,  sec.  223  et  seq. 
U.   S.  564,  28   Sup.  Ct.  Rep.  208,   52  14  Mills'   Irrigation  Manual,   p.   34. 

L.  Ed.  340.  15  Schilling    v.    Rominger,    4    Colo. 

Miscellaneous. — The  Western  law  of  100. 
appropriation     in    lieu     of     riparian          W  Crisman  v.  Heiderer,  5  Colo.  596. 


§  118  Ch.  6.     HISTORICAL— 1866  TO  THE  PRESENT.     (3d  ed.)     141 

one  man's  business  is  not  to  be  made  the  standard  of  another  man's 
right." 

Coffin  v.  Left  Hand  Ditch  Co.17  is  the  next  case.  The  appro- 
priation had  been  made  while  the  water  flowed  over  public  land. 
Those  claiming  as  riparian  owners  had  acquired  their  land  title 
after  the  diversion,  and  would  have  no  rights  under  the  California 
doctrine,18  for  the  point  actually  decided,  "If  appropriated  by  one 
prior  to  the  patenting  of  such  soil  by  another,  it  is  a  vested  right, 
entitled  to  protection,  though  not  mentioned  in  the  patent, " 19  is 
part  of  the  California  doctrine.  The  California  court  considered 
the  Coffin  case  in  Lux  v.  Haggin,  and  pointed  out  that  the  Colo- 
rado court  in  actual  decision  was  only  protecting  old  appropria- 
tions made  before  the  settlement.  The  Coffin  opinion,  however, 
made  no  distinction  between  prior  and  subsequent  diversions,  and 
declared  that  on  the  ground  of  imperative  necessity  no  settlers  can 
claim  any  right  aside  from  appropriation.  This  dictum  rejecting 
the  riparian  rights  of  the  settler  against  new  appropriations  is 
generally  taken  as  the  original  precedent  for  the  rejection  of  the 
common  law  in  toto  under  what  is  now  called  the  Colorado  doctrine. 

The  Colorado  doctrine  is  in  force  in  the  following  jurisdictions: 
Alaska,  Arizona,  Colorado,  Idaho,  New  Mexico,  Nevada,  Utah,  Wyo- 
ming, and  partially  in  Nebraska,  Oregon  and  Texas,  and  has  been 
very  recently  sanctioned  and  applied  by  the  supreme  court  of  the 
United  States.20 

17  6  Colo.  443.  sub.    nom.    4    Ariz.    346;    Austin    v. 

18  Although   the   patent   issued   be-  Chandler,  42  Pac.  483;   Boquillas  etc. 
fore    1866,   that   is   immaterial   under  Co.  v.   Curtis,   11   Ariz.   128,   89   Pac, 
the    California    doctrine.     The    Coffin  504;    S.   C.,   213  U.   S.   339,   29   Sup. 
case  on  its  facts  was  similar  to  Van  Ct.  Rep.  493,  53  L.  Ed.  822 ;  Arizona 
Sickle  v.  Haines,  and  the  actual  deei-  Copper  Co.  v.  Gillespie   (Ariz.  1909), 
sion  was  only  a  rejection  of  the  Van  100  Pac.   465. 

Sickle    "trespasser"   theory   above   set  Colorado. — Coffin     v.     Left     Hand 

forth.     Supra,  sec.  87.  Ditch    Co.,    6    Colo.    443.     See,    also, 

19  Page  449.  Yunker    v.    Nichols,    1    Colo.    551,    8 

20  Alaska. — Van  Dyke  v.  Midnight  Morr.  Min.  Rep.  64;  Schilling  v.  Rom- 
Sun   Co.    (C.   C.   A.    1910),   177   Fed.  inger,  4  Colo.  100;   Crisman  v.  Heid- 
85.     (Prior  to  this  decision  the  mat-  erer,  5  Colo.  596;   Hammond  v.  Rose, 
ter  was  in  doubt.     See  Ketchikan  etc.  11  Colo.  526,  7  Am.  St.  Rep.  258,  19 
Co.    v.    Citizens'    etc.    Co.,    2    Alaska,  Pac.  466;   Oppenlander  v.  Left  Hand 
120;    Thorndyke   v.    Alaska    Pers<>ver-  Ditch  Co.,  18  Colo.  142,  31  Pac.  854; 
ance  Co.,  164  Fed.  657;  McCloskey  v.  Crippen   v.    White,    28   Colo.    298,    64 
Pacific   Coast   Co.,    160   Fed.    794,   87  Pac.   184;    Sternberger  v.  Seaton  etc. 
C.  C.  A.  568.)     See,  also,  Madigan  v.  Co.    (1909),   45    Colo.   401,    102   Pae. 
Kougarok  M.  Co.,  3  Alaska,  63;   Me-  168     (citing     this     book,     2d     ed.) ; 
Farland  v.  Alaska  etc.  Co.,  3  Alaska,  Snyder  v.  Colorado  etc.  Co.  (C.  C.  A.), 
308.  181  Fed.  62;  Cascade  etc.  Co.  v.  Em- 

Arisona. — Clough  v.  Wing,  2  Ariz.  pire  etc.  Co.  (Colo.),  181  Fed.  1011. 
371,  17  Pac.  453 ;  Chandler  v.  Austin,  But  it  seems  that  the  common  law  of 


142     (3ded.)     Pt.  II.     CALIFORNIA  -  COLORADO  DOCTRINES.          §118 


In  some  of  these  the  decision  is  aided  by  constitutional  or  statu- 
tory provisions  cited  and  construed  in  the  cases.  In  others,  notably 
Nevada,  it  was  reached  without  statute.  In  all  of  them  the  point 


riparian  rights  applies  to  domestic 
uses  (infra,  sec.  308),  and  there  are 
decisions  in  the  Federal  courts  for 
Colorado  based  on  the  common  law  of 
riparian  rights  generally.  Mason  v. 
Cotton,  4  Fed.  792,  2  McCrary,  82; 
Schwab  v.  Beam,  86  Fed.  41,  19  Morr. 
Min.  Rep.  279.  (Kansas  v.  Colorado, 
206  U.  S.  46,  27  Sup.  Ct.  Rep.  655, 
51  L.  Ed.  956,  evaded  the  issue  upon 
the  law  of  waters.)  In  a  late  case, 
Humphreys  etc.  Co.  v.  Frank  (1909), 
46  Colo.  524,  105  Pac.  1093,  it  was 
left  open  whether  a  riparian  owner 
"has  still  some  rights  which  the  law 
recognizes,"  though  subordinate  to 
that  of  a  prior  appropriator. 

Idaho. — Drake  v.  Earhart,  2  Idaho, 
750,  23  Pac.  541;  Boise  etc.  Co.  v. 
Stewart,  10  Idaho,  38,  77  Pac.  25, 
321 ;  Taylor  v.  Hulett,  15  Idaho,  265, 
97  Pac.  39,  19  L.  R.  A.,  N.  S.,  535; 
Hutchinson  v.  Watson  D.  Co.  (1909), 
16  Idaho,  484,  133  Am.  St.  Rep.  125, 
101  Pac.  1059,  citing  this  book,  2d 
ed.  In  the  Federal  courts,  see 
Krall  v.  United  States,  79  Fed.  241, 
24  C.  C.  A.  543.  But  riparian  rights 
have  been  very  lately  held  to  exist  in 
Idaho  as  regards  access  to  navigable 
waters  (Shepard  v.  Coeur  d'Alene 
Co.  (1909),  16  Idaho,  293,  101  Pac. 
591),  and  exist  also  as  against  any- 
one diverting  the  stream  without  com- 
plying with  the  rules  for  securing  a 
valid  appropriation  according  to  law. 
Hutchinson  v.  Watson  D.  Co.,  16 
Idaho,  484,  133  Am.  St.  Rep.  125, 
101  Pac.  1059,  citing  Lux  v.  Haggin, 
69  Cal.  255,  10  Pac.  674,  and  the 
second  edition  of  this  book. 

Nebraska. — See  note  12  of  the  pre- 
ceding section. 

New  Mexico. — Trambley  v.  Luter- 
man,  6  N.  M.  15,  27  Pac.  312 ;  United 
States  v.  Rio  Grande  etc.  Co.,  9  N. 
M.  303,  51  Pac.  674;  S.  C.,  174  U.  S. 
706,  19  Sup.  Ct.  Rep.  770,  43  L.  Ed. 
1136;  Albuquerque  etc.  Co.  v.  Gutier- 
rez, 10  N.  M.  177,  61  Pac.  357;  S.  C., 
Gutierres  v.  Albuquerque  Land  etc. 
Co.,  188  U.  S.  545,  23  Sup.  Ct.  Rep. 
338,  47  L.  Ed.  588;  Hagerman  etc. 
Co.  v.  McMurray  (N.  M.  1911),  113 


Pac.  823,  citing  the  second  edition  of 
this  book. 

Nevada. — Reno  etc.  Co.  v.  Steven- 
son, 20  Nev.  269,  19  Am.  St.  Rep. 
364,  21  Pac.  317,  4  L.  R.  A.  60; 
Twaddle  v.  Winters,  29  Nev.  28,  85 
Pac.  284,  89  Pac.  2S9  (though  Van 
Sickle  v.  Haines,  7  Nev.  249,  15  Morr. 
Min.  Rep.  201,  had  been  the  other 
way.  Jones  v.  Adams,  19  Nev.  78, 
3  Am.  St.  Rep.  788,  6  Pac.  442,  is 
frequently  referred  to  as  overruling 
the  Van  Sickle  case,  but  it  did  so 
only  on  a  different  point).  In  the 
Federal  courts,  Van  Sickle  v.  Haines 
had  been  followed  (before  it  was 
overruled)  by  Union  etc.  Co.  v.  Fer- 
ris, Fed.  Gas.  No.  14,371,  2  Saw.  176, 
8  Morr.  Min.  Rep.  90;  Union  etc.  Co. 
v.  Dangberg,  Fed.  Gas.  No.  14,370, 
2  Saw.  450,  8  Morr.  Min.  Rep.  113, 
which  were  practically  overruled  by 
Union  etc.  Co.  v.  Dangberg,  81  Fed. 
73.  See,  also,  Anderson  v.  Bassman, 
140  Fed.  14. 

Oregon. — See  note  12  of  the  preced- 
ing section. 

Texas. — Se.e  note  12  of  the  preced- 
ing section. 

Utah. — Stowell  v.  Johnson,  7  Utah, 
215,  26  Pac.  290;  Salt  Lake  City  v. 
Salt  Lake  etc.  Co.,  25  Utah,  456,  71 
Pac.  1069;  Nash  v.  Clark,  27  Utah, 
158,  101  Am.  St.  Rep.  953,  75  Pac. 
371,  1  L.  R.  A.,  N.  S.,  208;  S.  C., 
Clark  v.  Nash,  198  U.  S.  361,  25  Sup. 
Ct.  Rep. '676,  4  Ann.  Cas.  1171,  49  L. 
Ed.  1085;  Cole  v.  Richards  Irr.  Co., 
27  Utah,  205,  101  Am.  St.  Rep.  962, 
75  Pac.  376.  But  see  Willow  Cr.  etc. 
Co.  v.  Mclntyre,  21  Utah,  248,  81 
Am.  St.  Rep.  687,  60  Pac.  943,  51 
L.  R.  A.  280.  . 

Wyoming. — Moyer  v.  Preston,  6 
Wyo.  308,  71  Am.  St.  Rep.  914,  44 
Pac.  845;  Willey  v.  Decker,  11  Wyo. 
496,  100  Am.  St.  Rep.  939,  73  Pac. 
210. 

United  States  Supreme  Court. — 
At  the  time  of  the  second  edition  of 
this  book  there  had  been  no  actual  de- 
cision of  the  United  States  supreme 
court  enforcing  the  Colorado  doctrine 
against  a  riparian  owner,  yet  cases 


§118  Ch.  6.     HISTOEICAI/— 1866  TO  THE  PRESENT.     (3d  ed.)     143 

is  to-day  covered  by  statute.21  There  has  been,  however,  an  adop- 
tion of  the  common  law  in  all  the  Western  States  as  the  basis  of 
their  general  law.22 

These  States  generally  arrived  at  their  conclusion  in  the  same 
way  as  Colorado.  In  the  earliest  of  them  the  facts  usually  pre- 
sented an  appropriation  on  public  land  prior  to  the  riparian  settle- 
ment, and  the  question  really  was  only  upon  the  "trespasser"  theory 
of  Van  Sickle  v.  Haines ;  that  is,  whether  a  subsequent  patent  could 
oust  an  existing  appropriator  as  a  mere  trespasser.  Such,  for  ex- 
ample, were  the  cases  in  Colorado,23  Idaho,24  Nevada25  and  New 
Mexico,  on  whose  facts  the  appropriator  was  prior  to  the  riparian 
settlement.  In  rejecting  the  principle  of  the  Van  Sickle  case  (with 
its  holding  that  appropriators,  even  those  antedating  the  riparian 
settlement,  were  mere  trespassers),  so  great  was  the  popular  dis- 
approval and  the  reaction,  that  the  courts  of  these  younger  States 
threw  aside  the  common  law  of  riparian  rights  absolutely  (even 
should  the  riparian  settlement  in  turn  precede  the  diversion)  and 
have  ever  since  refused  to  recognize  it  at  all,  and  therewith  have 
refused  to  recognize  any  proprietary  water-rights  in  a  landowner 
as  such  under  any  circumstances,  whether  it  be  the  United  States 
or  its  private  successors  holding  land  patents. 

For  this  the  California  decisions  were  misconceived  to  be  au- 
thority which  the  younger  courts  believed  they  were  following. 
For  example,  in  New  Mexico  a  case  arose  which,  like  the  Coffin 
case,  presented  an  appropriation  prior  to  the  riparian  settlement, 
but  the  New  Mexico  court l  cites  the  California  cases,  as  support- 
contained  much  matter  showing  a  clear  21  The  constitutional  provision  re- 
determination  to  uphold  the  Colorado  lied  on  in  Colorado  is  Colorado  con- 
doctrine  in  States  that  had  adopted  stitution,  article  16,  sections  5  and  6; 
it.  United  States  v.  Eio  Grande  etc.  in  Idaho,  article  15,  section  3;  in 
Co.,  174  U.  S.  706,  19  Sup.  Ct.  Rep.  Wyoming,  article  1,  section  31. 
770,  43  L.  Ed.  1136;  Gutierres  v.  Al-  22  U.  S.  v.  Rio  Grande  etc.  Co.,  174 
buquerque  etc.  Co.,  188  U.  S.  545,  23  U.  S.  706,  19  Sup.  Ct.  Rep.  770.  43 
Sup.  Ct.  Rep.  338,  47  L.  Ed.  588;  L.  Ed.  1136. 

Clark  v.  Nash,  198  U.  S.  361,  25  Sup.  23  Coffin  v.  L.  H.  D.  Co.  and  Tynan 

Ct.  Rep.  676,  49  L.  Ed.  1085,  4  Ann.      V-   Despain,   supra,   patent   issued  be- 
Cas.  1171;  Kansas  v.  Colorado,  206  U.       fore   iggg 
S.   46,   27   Sup.   Ct.   Rep.   655,   51   L.  o^  r>    i  -d    u 

Ed.  956.     Sin?e  then,  the  decision  in      „  \ £rake    v.    Earhart     swpra,    and 
Boquillas    etc.    Co.    v.    Curtis    (1909,      SfiH^S  T'lJ     ^    i^    A  ™P£ 
from  Arizona),  213  U.  S.  339,  29  Sup!      11      ^   ?rr f  £     '  i1S&       ?    ^      \ 
Ct.  Rep.  493,  53  L.  Ed.  822,  very  em-      ^'^'  101  Pac".  \9o9'  Patent  issued 
phatically  applied  the  doctrine  against      after  the  appropriation. 
a    riparian     owner.     See,     also,    Los          25  Jones  v-  Adams,   19  Nev.  78,  3 
Angeles     v.     Los     Angeles     etc.     Co.       Am-  St-  ReP-  788,  6  Pac.  442. 
(1910),   217   U.   S.   217,   30   Sup.   Ct.  l  Trambley  v.  Luterman.   6  N.  M. 

Rep.  452 ,  54  L.  Ed.  736.  25,  27  Pac.  312. 


144     (3ded.)     Pt.  II.     CALIFORNIA  -  COLOBADO  DOCTBINES.          §119 


ing  its  ruling  that  "the  common  law,  as  to  rights  of  riparian 
owners,  is  not  in  force  in  this  Territory  nor  in  California,  Nevada, 
and  other  Pacific  States."  The  California  decisions  were  not  clearly 
understood. 

(3d  ed.) 

§  119.  Same — "Landowner"  Statute. — In  reaching  the  con- 
clusion in  Colorado,  an  early  statute  (quoted  in  the  part  of  this 
book  relating  to  statutes)  was  referred  to.  The  Colorado  terri- 
torial legislature  in  1861 2  provided  that  all  landowners  on  the 
banks  of  a  stream  are  entitled  to  use  the  water  for  irrigation,  and 
in  1862,3  that  no  stream  shall  be  diverted  to  the  detriment  of  any 
landowner  along  it.  In  1864,4  "who  have  a  priority  of  right"  was 
inserted  with  reference  to  the  landowner.  As  between  such  land- 
owners themselves  an  equitable  apportionment  (and  not  priority) 
was  provided  for.5  This  statute  has  been  copied  in  other  States.6 
The  Colorado  court  held  it  to  be  a  positive  rejection  of  riparian 
rights  because  it  permitted  irrigation.7  So  did  the  Wyoming  court.8 
In  Montana,  South  Dakota  and  Washington,  however,  and  partly 
in  Oregon,  the  contrary  is  declared.  Instead  of  rejecting  riparian 


2  Stats.   1861,  p.   67,   sec.   1;   Rev. 
Stats.    1908,  sec.  3165;  M.  A.  S.  2256 
et  seq. 

3  Stats.  1862,  p.  48,  sec.  48. 

4  Stats.  1864,  p.  68,  sec.  32. 

5  Rev.  Stats.  1908,  sec.  3166;   Gen. 
Stats.,   sees.   1375,   1714;  Laws   1861, 
p.   68,   sec.   4.     See  Rev.   Stats.   1908, 
sec.  3427. 

6  Colorado. — As     just     cited.      See 
Colorado  Stats.,  sec.  1433,  infra. 

Idaho. —  (Quoted  in  the  part  of  this 
book  relating  to  statutes,  sec.  1435, 
infra.)  Rev.  Stats. -3184,  quoted  in 
Schodde  v.  Twin  Falls  etc.  Co.,  161 
Fed.  43,  88  C.  C.  A.  207.  Likewise 
McLean's  Rev.  Codes,  sec.  3299;  Rev. 
Stats.  1887,  sec.  3180,  cited  in  dis- 
senting opinion  in  Drake  v.  Earhart, 
2  Idaho,  750,  23  Pac.  541. 

Montana. — Bannock's  Stats.  367, 
sees.  1,  2;  Thorp  v.  Freed,  1  Mont. 
651. 

North  Dalcota. — Rev.  Codes,  Civ. 
Code,  sec.  4798;  Bigelow  v.  Draper, 
6  N.  D.  152,  69  N.  W.  570. 

Oregon. — B.  &  C.  Comp.,  sec.  5000, 
semblc.  See  Hough  v.  Porter,  51  Or. 
318,  95  Pac.  732,  98  Pae.  1083,  102 
Pac.  728. 

South  Dalcota. — (As  quoted  in  the 
part  of  this  book  relating  to  statutes, 


see.  1445,  infra.)  Rev.  Codes,  sees. 
278,  2563;  Amd.  Stats.  1899,  sec. 
2687;  cf.  Stats.  1907,  p.  382;  Lone 
Tree  Co.  v.  Cyclone  Co.,  15  S.  D.  519, 
91  N.  W.  354."  Cf.  Stats.  1911,  e.  263, 
p.  468. 

Washington. — Laws  1873,  p.  520; 
Laws  1899,  c.  131,  p.  261;  Pierce's 
Codes  1905,  sec.  5123;  Hill's  Codes, 
sees.  1718,  1761,  1774.  See  Benton  v. 
Johncox,  17  Wash.  277,  61  Am.  St. 
Rep.  912,  49  Pac.  495,  39  L.  R.  A. 
107;  Weed  v.  Goodwin,  36  Wash.  31, 
78  Pac.  36;  Dickey  v.  Maddux,  48 
Wash.  411,  93  Pac.  1090;  Nielson  v. 
Sponer,  46  Wash.  14,  123  Am.  St. 
Rep.  910,  89  Pac.  155;  Hollett  v. 
Davis,  54  Wash.  326,  103  Pac.  423; 
State  ex  rel.  Galbraith  v.  Superior 
Court  (Wash.  1910),  110  Pac.  429. 

Wyoming.  —  Comp.  Laws  1867 
(1876),  c.  65,  sec.  1;  Rev.  Stats.  1317; 
Willey  v.  Decker,  11  Wyo.  496,  100 
Am.  St.  Rep.  939,  73  Pac.  210. 

7  Coffin  v.  Left  Hand  D.  Co.,  and 
other  cases  cited  supra,  sec.  118. 

8  Willey   v.   Decker,    11   Wyo.   496, 
100   Am.  "St.  Rep.   939,   73  Pac.  210; 
Moyer  v.  Preston,  6  Wyo.  308,  71  Am. 
St.  Rep.  914,  44  Pac.  845. 


§  120  Ch.  6.     HISTORICAL— 1866  TO  THE  PRESENT.     (3d  ed.)     145 

rights  the  statute  is  held  a  simple  exposition  thereof,  preserving 
the  stream  to  the  neighboring  landowners,  who  have  settled  prior 
to  the  appropriation,  and  a  declaration  that  a  possessory  right  to 
the  land  should  be  equivalent  to  the  fee  for  this  purpose.9  A  casual 
reading  of  the  statute  certainly  would  give  the  impression  that  it 
was  very  similar  in  intent  to  the  early  California  provision  that 
"The  rights  of  riparian  proprietors  are  not  affected  by  the  provi- 
sions of  this  title."10  It  certainly  sounds  like  the  expressions  used 
by  courts  following  the  California  doctrine  in  expressing  the  ripa- 
rian owner's  right  to  irrigate.  The  insertion  of  "priority  of  right" 
in  1864  strengthens  this  similarity,  for  the  California  doctrine,  at 
its  foundation,  requires  the  riparian  owner  to  have  settled  prior 
to  the  appropriation  if  he  would  assert  his  riparian  right.11  In 
Oregon  the  court  recently,  while  departing  from  its  previous  rulings 
and  rejecting  riparian  rights  to  a  considerable  extent,  relied  on  this 
act  as  prohibiting  a  rejection  in  tot o.12  Nevertheless,  it  has  been 
one  of  the  features  relied  on  in  Colorado  and  Wyoming  to  support 
the  absolute  rejection  of  riparian  rights,  as  above  set  forth. 

(3d  ed.) 

§  120.     Same  —  Collateral  Results  of  the  Rejection. — This  re- 
jection of  riparian  rights  under  the  Colorado  doctrine  is  held  to 

9  Thorp  v.  Freed,  1  Mont.  651,  per  statute  might  be  taken  as  a  protection 
Wade,   C.    J. ;   Lone    Tree  D.  Co.    v.  of  riparian  rights  after  patent  issued, 
Cyclone  D.  Co.,  15  S.  D.  519,  91  N.  though  refusing  to  pass  upon  the  ef- 
W.  354;  Benton  v.  Johncox,  17  Wash.  feet   of    such    an    act    before    patent. 
277,   61    Am.    St.    Rep.   912,   49    Pac.  Jennison   v.   Kirk,   98   U.   S.   453,   25 
498,  39  L.  R.  A.  107;  Dickey  v.  Mad-  L.   Ed.  240,   4  Morr.   Min.  Rep.   504, 
dux,    48   Wash.     411,    93    Pac.    1090;  concerning  the  proviso  in  the  act  of 
Kendall   v.   Joyce,  48  Wash.   489,   93  1866. 

Pac.     1091.     Cf.,     also,     Bigelow     v.  12  Sayingc   "And  in  this  connection 

Draper,  6  N.  D.  152,  69  N.  W.  570,  it  will  be  observed  that  section  5000, 

and  dissenting  opinion  of  Berry,  J.,  in  B.    &   C.    Comp.,    protects    the    owner 

Drake   v.    Earhart,   2   Idaho,    750,    23  contiguous  to  the  stream,  as  against 

Pac.  541.  those  claiming  under  the  act  of  which 

10  Cal.  Civ.  Code,  sec.  1422.     So,  in  that  section  is  a  part,  in  his  right  to 
Lux  v.  Haggin,  a  point  was  made  of  the  flow  of  the  stream  to  the  extent 
an     earlier     California     section,     still  required  for  household,  domestic,  and 
more    similar    to    the    Colorado    one;  other  uses  incident  thereto,  with  suffi- 
Cal.   Stats.   1863-64,   p.   375,   sec.   10,  cient  quantity  for  irrigation  purposes 
providing:      "No     person    or    persons  to  the  extent  then  actually  needed  and 
shall  divert   the   waters   of  any   river  in  use.     An  exception   to  that  extent 
or  stream   from   its    natural   channel  is   accordingly   made  in   favor  of  the 
to  the  detriment  of  any  person  or  per-  landowner,  as  against,  and  only  to  the 
sons     located     below     them     on     the  extent  of,  such  rights  as  may  be  as- 
stream."  serted    under    the     act."     Hough     v. 

11  In    the    supreme    court    of    the  Porter,   51   Or.   318,   95   Pae.   732,  98 
United  States  it  was  said  that  such  Pac.  1083,  102  Pac.  728. 

Water  Rights — 10 


146     (3d  ed.)     Pt.  II.     CALIFORNIA  -  COLOEADO  DOCTEINES.          §  121 

extend  to  a  rejection  of  common-law  riparian  fishing  rights  in  Colo- 
rado ; 13  but  in  Idaho,  not  to  include  a  rejection  of  the  common-law 
riparian  rights  to  accretion  or  access,14  nor  in  Idaho,  to  a  rejection 
of  riparian  right  to  domestic  use  against  an  appropriator  not  com- 
plying with  the  law  in  regard  to  making  appropriations,15  nor  in 
Oregon  (under  its  recent  change  of  rule)  to  a  rejection  of  the  ripa- 
rian right  for  domestic  use  in  any  event.16 

The  rejection  of  riparian  rights  in  Colorado  applies  to  lands 
acquired  while  Colorado  was  a  territory,  as  well  as  those  acquired 
after  the  adoption  of  the  constitution,17  and,  in  Arizona,  to  lands 
deraigned  under  Mexican  grant  as  well  as  those  deraigned  under 
United  States  patent.18 

(3d  ed.) 

§  121.  In  the  Supreme  Court  of  the  United  States. — While 
Judge  Field  was  on  the  bench,  the  decisions  of  the  supreme  court 
of  the  United  States  were  given  on  the  theory  that  the  appropriator 
deraigned  his  rights  from  the  United  States  as  proprietor  of  the 
public  lands,  and  that  he  was  protected  against  the  riparian  claims 
of  settlers  only  if  the  appropriation  was  prior  in  time  to  the  settle- 
ment, and  that  the  Federal  statutes  so  affirmed  in  order  to  prevent 
the  loss  of  the  appropriation  on  a  later  sale  of  the  public  land  by  the 
United  States  to  the  private  landowner.  This  earlier  line  of  the  de- 
cisions follows  close  to  the  historical  rationale  of  the  doctrine  which 
gave  it  origin  as  a  system  of  disposing  of  rights  on  the  public  domain, 
and  culminated  in  Sturr  v.  Beck,19  actually  enforcing  the  California 
doctrine  in  favor  of  a  prior  settler  when  private  riparian  land  was 
involved.  This  first  stage  of  the  United  States  supreme  court's 

13  Sternberger  v.  Seaton  etc.  Co.  as  inferior  to  a  right  acquired  by 

(1909)  45  Colo.  401,  102  Pac.  168.  appropriation,  and  superior  to  any 

Cf.  State  v.  Barker  (Utah),  108  Pae.  right  of  a  stranger  to  or  intermeddler 

352.  with  the  waters  of  such  stream." 

n  Hutchinson    v.    Watson    D.    Co.  ie  Houeh  v    Porter,  supra. 

i1909^1^?0'  I4n%  133  Am'  St'  17  Sternberger  v.  Seaton  Co.  (Colo. 
Rep.  125  101  Pac.  1059.  19Q9)  45  c  *  4Q1  1Q2  p  -^ 

lo  Ibid.,  and    quaere  in    Colorado. 

See  Sternberger  v.  Seaton  Co.,  supra;  18  Boquillas   etc.   Co.   v.   Curtis,    3 

and  Humphrey  T.  Co.  v.  Frank  (1909)  Ariz.    128,    89    Pac.    504;    S.    C.,   213 

46  Colo.  524,  105  Pac.  1093,  a  case  of  U.  S.  339,  29  Sup.  Ct.  Rep.  493,  53  L. 

pollution.     The  headnote  of  the  Idaho  Ed.   822.     But  not,  in  Arizona,  to   a 

ease    in    the    Pacific    Reporter    says:  rejection  of  the  common-law  right  of 

"A    riparian   owner's   right    to    use  a    riparian    owner    not    to    have    the 

the   water  of   a  stream   for  domestic  stream     backed    up    upon    his    land, 

and   culinary   purposes   and   watering  Kroeger    v.     Twin     Buttes     etc.     Co. 

his  stock,  and  to  have  the  water  flow  (Ariz.),  114  Pac.  553. 

by  or  through  his  riparian  premises,  19  133  U.  S.  541,  10  Sup.  Ct.  Rep. 

is  such  a  right  as  the  law  recognizes  350,  33  L.  Ed.  761. 


§  122  Ch.  6.     HISTORICAIr-1866  TO  THE  PRESENT.     (3d  ed.)     147 

decisions  includes  Atchison  v.  Peterson,20  Basey  v.  Gallagher,21  Jen- 
nison  v.  Kirk,22  Broder  v.  Water  Co.,1  and  Sturr  v.  Beck.2 

(3d  ed.) 

§  122.  Same. — But  a  second  stage  of  the  decisions  of  the  supreme 
court  of  the  United  States  has  within  recent  years  been  reached, 
which  disregards  the  proprietary  rights  of  the  United  States  as  hav- 
ing any  bearing  upon  the  rights  of  an  appropriator.  Recent  cases 
have  all  gone  to  that  court  from  jurisdictions  where  the  Colorado 
doctrine  is  in  force,  and  the  theory  on  which  they  are  based  is  en- 
tirely that  of  the  Colorado  doctrine,  regarding  the  right  of  appro- 
priation as  dependent  purely  on  local  sovereign  power  to  fix  the 
local  law  without  attempting  to  reconcile  this  with  the  decisions  of 
the  earlier  or  "public  domain"  stage.  This  line  of  decisions  in- 
cludes United  States  v.  Rio  Grande  etc.  Co.,3  Gutierres  v.  Albuquer- 
que etc.  Co.,4  Clark  v.  Nash,5  Kansas  v.  Colorado,6  and  Boquillas  etc. 
Co.  v.  Curtis.7  This  line  of  authorities  is  based  on  a  determination 
to  uphold  the  Colorado  doctrine  in  such  States  as  have  adopted  it, 
and  upon  which  rights  have  there  grown  up  of  great  value.  They 
are  not,  however,  clear  on  the  precise  ground  upon  which  it  is  to  be 
upheld.  The  first  two8  declare  for  a  construction  of  the  early 
Federal  statutes  as  the  basis;  while  the  last  three9  show  a  de- 
termination to  pass  by  those  statutes,  and  to  treat  the  question  as 
one  inherent  in  local  sovereignty,  regardless  of 'Federal  proprietor- 
ship. This  view,  strongly  asserted  in  Kansas  v.  Colorado,  was  not 
actually  in  that  case  decided  because  the  decision  was  rested  on  the 
insufficiency  of  a  showing  of  damage  in  the  case  by  the  riparianists 
such  as  would  warrant  an  injunction,  even  if  the  anti-riparian 
system  were  not  sound,  but  was  actually  enforced  and  decided  in 
Boquillas  etc.  Co.  v.  Curtis.  At  the  same  time,  in  another  very 
recent  case,  decided  between  Kansas  v.  Colorado  and  the  Boquillas 

20  20  Wall.   (87  U.  S.)   507,  22  L.  4  188  U.  S.  545,  23  Sup.  Ct.  Rep. 
Ed.  414,  1  Morr.  Min.  Rep.  583.  338,  47  L.   Ed.   588. 

21  20  Wall.   (87  U.  S.)   670,  22  L.  5  198  U.  S.  361,   25   Sup.  Ct.  Rep. 
Ed.  452,  1  Morr.  Min.  Rep.  683.  676>  4  Ann-  CaS-  1171,  49  L.  Ed.  1085. 

22  98  U.  S.  453,  24  L.  Ed.  240,  4  *  2°6  yU-   «•   4q6'  ^   Sup.   Ct.   Rep. 
Morr.  Min.  Rep.  504.  65?>  "^    Ed.   9£6. 

1  101  U.  S.  274,  25  L.  Ed.  790,  5       Ct.  Rep.  493,  53  L.  Ed.  822. 

Morr.   Min.   Rep.    790.  8  United  States  v.  Rio  Grande  etc. 

2  133  U.  S.  541,  10  Sup.  Ct.  Rep.       Co.  and  Gutierres  v.  Albuquerque  etc. 
350,  33  L.  Ed.  761.  Co. 

3  174  U.  S.  690,  19  Sup.  Ct.  Rep.          9  Clark  v.   Nash,  Kansas  v.    Colo- 
770,  43  L.  Ed.  1136.  rado,  and  Boquillas  etc.  Co.  v.  Curtis. 


143     (3ded.)     Pt.  II.     CALIFORNIA  -  COLOEADO  DOCTRINES.          §123 


case,  it  is  said  by  Mr.  Justice  McKenna : 10  "  The  power  of  the  gov- 
ernment to  reserve  the  waters  and  exempt  them  from  appropriation 
under  the  State  laws  is  not  denied  and  could  not  be."  This  is  in- 
consistent with  what  Mr.  Justice  Brewer  said  in  Kansas  v.  Colorado, 
and  he  accordingly  dissented.11 

These  decisions  will  be  considered  more  at  length  later;  for  the 
purpose  of  this  historical  statement  the  following  passage  best 
shows  the  present  attitude  of  the  supreme  court  of  the  United 
States:  "This  court  must  recognize  the  difference  of  climate  and 
soil  which  renders  necessary  these  different  laws  in  the  States  so 
situated."12  That  is,  whatever  may  be  the  true  theory,  the  water 
laws  of  each  State  will  be  upheld  on  the  ground  of  expediency 
because  of  the  valuable  rights  which  have  grown  up  under  both 
systems. 

C.     LATER  AND  RECENT  STATE  LEGISLATION. 
(3d  ed.) 

§  123.  Public  Service  Declared  Under  State  Control.— In  1879 
California  adopted  a  new  constitution.  The  history  of  the  move- 


10  Winters    v.    United    States,     207 
U.  S.  564,  28   Sup.  Ct.  Rep.  208,  52 
L.    Ed.    340.     See    Burley   v.     United 
States   (1910),  179  Fed.  1. 

11  There  should  be  added  the  case 
(decided  since  the  above  was  written) 
of  Los   Angeles   v.   Los   Angeles   Co. 
(1910),  217  U.  S.  217,  30  Sup.  Ct.  Rep. 
452,  54  L.  Ed.  736.     The  case  arose 
in  California  under  the  pueblo   right 
of  Los  Angeles,  which  the  State  court 
holds    paramount  to    riparian    rights. 
Supra,  sec.  68.     This  decision  is  more 
particularly     referred     to     hereafter. 
Infra,  sees.  177,  183. 

12  Clark   v.    Nash,    198   U.   S.    361, 
25  Sup.  Ct.  Rep.  676,  49  L.  Ed.  1085. 

There  have  been  the  following  de- 
cisions in  the  supreme  court  of  the 
United  States:  Atchison  v.  Peterson, 
87  U.  S.  507,  22  L.  Ed.  414,  1  Morr. 
Min.  Rep.  583 ;  Basey  v.  Gallagher, 
87  U.  S.  670,  22  L.  Ed.  452,  1  Morr. 
Min.  Rep.  683;  Jennison  v.  Kirk,  98 
U.  S.  453,  25  L.  Ed.  240,  4  Morr. 
Min.  Rep.  504;  Broder  v.  Water  Co., 
101  U.  S.  274,  25  L.  Ed.  790,  5  Morr. 
Min.  Rep.  33;  Sturr  v.  Beck,  133  U. 
S.  541,  10  Sup.  Ct.  Rep.  350,  33  L. 
Ed.  761;  Bybee  v.  Oregon  etc.  Co., 
1S9  U.  S.  663,  11  Sup.  Ct.  Rep.  641, 


35  L.  Ed.  305;  Bear  Lake  etc.  Co.  v. 
Garland,  164  U.  S.  1,  17  Sup.  Ct.  Rep. 
7,  41  L.  Ed.  327;  United  States  v. 
Rio  Grande  etc.  Co.,  174  U.  S.  690,  19 
Sup.  Ct.  Rep.  770,  43  L.  Ed.  1136; 
Kansas  v.  Colorado,  185  U.  S.  125,  22 
Sup.  Ct.  Rep.  552,  46  L.  Ed.  838; 
Telluride  etc.  Co.  v.  Rio  Grande  etc. 
Co.,  187  U.  S.  569,  23  Sup.  Ct.  Rep. 
178,  47  L.  Ed.  307;  Gutierres  v.  Al- 
buquerque etc.  Co.,  188  U.  S.  545,  23 
Sup.  Ct.  Rep.  338,  47  L.  Ed.  588; 
Clark  v.  Nash,  198  U.  S.  361,  25  Sup. 
Ct.  Rep.  676,  49  L.  Ed.  1085,  4  Ann. 
Gas.  1171;  Kansas  v.  Colorado,  206 
U.  S.  46,  27  Sup.  Ct.  Rep.  655,  51 
L.  Eel.  956;  Winters  v.  United  States, 
207  U.  S.  564,  28  Sup.  Ct.  Rep.  208, 
52  L.  Ed.  340;  Boquillas  etc.  Co.  v. 
Curtis,  213  U.  S.  339,  29  Sup.  Ct. 
Rep.  493,  53  L.  Ed.  822;  Rio  Grande 
etc.  Co.  v.  United  States,  215  U.  S. 
266,  30  Sup.  Ct.  Rep.  97,  54  L.  Ed. 
97;  Los  Angeles  v.  Los  Angeles  Co. 
(1910),  217  U.  S.  217,  30  Sup.  Ct. 
Rep.  452,  54  L.  Ed.  736;  Rickey  v. 
Miller  (U.  S.,  1910),  31  Sup.  Ct. 
Rep.  11.  See  Hudson  etc.  Co.  v.  Mc- 
Carter  (1908),  209  U.  S.  349,  28  Sup. 
Ct.  Rep.  529,  52  L.  Ed.  828,  14  Ann. 
Cas.  560. 


§  124  Ch.  6.     HISTORICAL— 1866  TO  THE  PRESENT.     (3d  ed.)     149 

ment  leading  up  to  it  is  contained  in  Bryce's  American  Common- 
wealth; from  which  it  seems  that  a  strong  sentiment  had  been 
aroused  against  capital  and  monopoly.  The  leader  of  the  move- 
ment, Dennis  Kearney,  addressed  himself  chiefly,  in  this  regard, 
against  the  railway  and  steamship  lines;  but  in  the  convention  the 
movement  was  widened  to  include  other  public  services,  including 
water.  At  the  instance  of  Volney  Howard,  of  Los  Angeles,  article 
XIV  was  placed  in  the  new  constitution,  declaring  the  distribution 
of  water  to  the  public  to  be  a  public  use,  and  subject  to  the  regu- 
lation and  control  of  the  State;  and  the  California  provision,  with 
variations,  has  been  copied  in  numerous  Western  constitutions  or 
statutes.13 

(3d  ed.) 

§  124.  Water  Codes. — In  California  and  some  of  the  States 
following  the  California  doctrine,  there  has  been  no  other  recent 
legislation  directly  affecting  the  law  of  waters,  just  as,  until  1909, 
California  had  practically  no  mining  legislation.  Legislation  upon 
waters  had  been  urged  in  the'  eighties  by  Mr.  Hall,  as  State  En- 
gineer, based  upon  the  law  of  appropriation,14  but  instead  of 
adopting  it,  the  legislature  abolished  his  office.  Later,  Professor 
Pomeroy,  in  his  work  on  Riparian  Rights,  urged  legislation  of  a 
different  kind,  based  more  upon  the  law  of  riparian  rights,  but 
equally  without  result.  In  1901  legislation  was  urged,  based  upon 
the  law  of  appropriation,  in  what  was  known  as  the  Works  Bill, 
its  features  being  those  of  the  "Wyoming  System,"  but  this  also, 
though  it  had  the  support  of  Professor  Mead,15  was  unsuccessful 
in  the  legislature.  A  similar  bill  introduced  in  1909  also  failed 
of  passage.16  Up  to  January  1,  1911,  there  were  no  water  codes 
of  this  kind  in  Arizona,  California,  Kansas,,  Montana,  Texas  or 
Washington.  Any  modifications  of  the  foregoing  in  Statutes  of 
1911  are  noted  in  the  next  section. 

But  in  most  of  the  other  States,   extensive   codes  have  been 
adopted,  within  the  last  few  years,  based  solely  on  the  law  of  ap- 
is Infra,  sec.  1264  et  seq.  for  1878-79;  the  measure  was  drawn 
14  In'  his  report,   part  I,  page  220,       out  in  the    report  of   1880,   and   has 
he   had   said:    "Indeed,   the   necessity       been   urged   in   every    succeeding   re- 
for  and  general  features  of  the  pro-       port." 

posed   Californian   law   for   'The   Dis-  15  Bulletin    100,    TL  .8.    Dept.    of 

covery    and    Adjudication    of    Water-       Agric. 

right  Claims'  were  stated  and  outlined  16  Introduced  by  Senator  Black,  of 

in  the  report  of  the  State  Engineer      Santa  Clara, 


150     (3d  ed.)     Pt.  II.     CALIFOENIA  -  COLOEADO  DOCTRINES.          §  124 

propriation,  and  chiefly  for  the  encouragement  of  irrigation,  though 
applying  to  all  pursuits,  under  the  influence  in  some  degree  of  the 
United  States  Reclamation  Service.  This  legislation  is  still  going 
on.  The  features  of  this  legislation  originated  partly  in  Colorado, 
but  chiefly  in  Wyoming,  where  they  owe  much  to  the  influence  of 
Professor  Elwood  Mead,  formerly  of  the  United  States  Depart- 
ment of  Agriculture,  and  recently  appointed  head  of  the  Irriga- 
tion Administration  of  Australia.  In  Utah,  a  code  was  adopted  by 
the  1903  session  of  the  legislature17  and  repealed  by  the  next,  and 
a  new  code  substituted18  very  similar  and  in  parts  identical;  and 
again  in  1907. 19  In  Wyoming  there  is  much  legislation  on  this 
subject,  and  in  1905  a  statute  was  passed  appointing  code  commis- 
sioners to  draft  a  new  code  to  be  presented  to  the  next  legisla- 
ture,20 and  a  code  adopted  in  1907.21  In  Oregon  a  code  was  adopted 
in  1909  based  upon  the  Wyoming  law,  in  consultation  with  the 
State  Engineer  of  Wyoming.22  In  eight  of  these  States  and  Terri- 
tories this  legislation  was  adopted  in  whole  or  in  large  part  in 
1905.  In  1907  and  1909  this  legislation  was  continued  in  numerous 
States,  being  devoted  to  broadening  the  first  enactments,  confined  to 
irrigation,  into  a  wider  scope  applying  to  all  uses,  as  a  general 
Water  Code.  More  or  less  elaborate  codification  in  this  line,  having 
common  characteristics,  will  be  found  in  Colorado,  Idaho,  Nebraska, 
Nevada,  New  Mexico,  North  Dakota,  Oklahoma,  Oregon,  South 
Dakota,  Texas,  Utah  and  Wyoming.23  In  Arizona24  there  are  stat- 
utes somewhat  similar  to  the  above  but  somewhat  influenced  by 
the  civil  law  of  acequias  borrowed  from  Mexico. 

The  main  features  of  this  new  legislation  are  solely  adminis- 
trative. The  substantive  law  concerning  the  extent  of  right,  loss 
of  right,  and  similar  matters,  remains  as  under  the  decisions  of 
the  courts,  largely  the  early  California  decisions.  The  new  stat- 
utes are  chiefly  administrative,  providing  for  enforcement  of  the 
rights  defined  by  case  law,  and  for  a  policing  of  the  waters.  They 
are  an  application  of  the  theory  of  public  ownership  of  natural 
resources.  Laws  enacted  since  1905  all  provide  for  the  rejection 
of  applications  the  approval  of  which  would  be  detrimental  to  the 
public  interests.  New  Mexico  and  South  Dakota  place  this  power 

17  Laws  Utah  1903,  c.  100.  21  See  statutes,  infra,  sec.   1449. 

18  Laws  Utah  1905,  c.  108.  22  Oregon    Stats.     1909,   c.   216,   p. 
i»  See  statutes,  infra,  sec.   1447.           319. 

20  Laws   Wyo.    1905,   p.   26.     Like-  23  Statutes  infra,  Part  VHL 

•wise  Montana,  Stats.  1905,  p.  184.  24  Bev.  Stats.  1901,  p.  1045. 


§  124         ch.  6.   HISTORICAL—  1866  TO  THE  PRESENT.    (3d  ed.)  151 

in  the  engineer,  while  in  Oregon  the  engineer  is  to  report  such  cases 
to  the  board  of  control,  which  is  to  decide  thereon.  The  chief 
sponsor  of  this  legislation  says:  "The  growing  belief  in  the  public 
ownership  of  public  utilities  applies  especially  to  water,  that  most 
essential  of  all  utilities."25  The  essentials  of  all  these  statutes 
consist  in  an  enactment  of  the  law  of  appropriation  as  the  sole 
law  on  the  subject  of  waters,  with  a  declaration  of  State  or  public 
ownership  of  all  waters;  a  reorganization  of  the  State  for  adminis- 
trative purposes  as  concerns  waters;  a  census,  determination  and 
listing  of  all  existing  appropriations;  a  comprehensive  method  of 
making  appropriations  hereafter;  and  various  provisions  for  polic- 
ing the  waters.  The  object  of  the  legislation  is  in  the  nature  of 
police  regulation  under  the  police  power  to  secure  the  orderly  dis- 
tribution of  water  for  irrigation.1 

In  the  act  of  1866,2  local  customs,  "laws"  and  decisions  of  courts 
are  referred  to,  and  this  has  been  held  to  apply  to  local  statutes,3 
and  to  the  statutes  of  a  Territory  as  well  as  those  of  a  State.4  The 
Nebraska  court  has  said  that  a  water  code  of  this  kind  unconstitu- 
tional in  part  would  be  so  in  whole,5  but  the  Idaho  court  held  the 
contrary.6  It  is  said  that  this  legislation  can  only  regulate,  and 
cannot  carry  that  regulation  to  the  extent  of  impairing  rights  held 
by  appropriators  out  of  a  policy  favoring  later  claimants.7 

This  legislation  being  very  new,  it  will  take  time  to  try  it  out. 
The  State  Engineer  of  Oregon  estimates  four  to  six  years  for  a 
satisfactory  test.  For  example,  the  Oregon  act  of  1909  enacted  an 
annual  tax  upon  new  water-power  projects,  which  has  been  found 
to  cause  the  abandonment  of  fifty-six  projects  out  of  one  hundred 
and  twelve  projected  ;  that  is,  has  cut  power  development  in  Oregon 
in  half;  from  which  experience  the  State  Engineer  has  recom- 
mended its  repeal.8 

25  Professor  Elwood  Mead  in  Bulle-  U.  S.)  670,  22  L.  Ed.  452.,  1  Morr. 

tin  100,  U.  S.  Dept.  Agric.,  p.  64.  Min.  Rep.  683. 

i  Combs  v.  Farmers'  etc.  Co.  -38  4  Gutierres  v.  Albuquerque  etc.  Co., 

Colo.  420,  88  Pac.  399.  ^8  U.  S.  545,  23  Sup.  Ct.  Rep.  338, 


Says  Mr    Lewis    State  Engineer  of  swforv.   Hathaway,   61   Neb. 

Oregon,   "The  small  water  user,  with  017    «5  AT    W    306 

limited  means,  cannot  afford  to  fight  e'Bear    Lake    v  '  Bndo-p     9    Idaho 

for  his  rights  in  the  courts      He  must  7Q    *™  ^^  jgffij,^ 

make  his  living  by  the  application  of  61-'     B  .                c      P      g  ;             1Q 

water  to  his  crops.     If  the  water  sup-  Tlov      oQ    77  T>O/,    OK    001 

ply  is  stolen,  his'only  hope  of  securing  "%B  "*%£  ^' 

justice  in  the  courts  is  gone."  8  g^  of  state  -Engineer  of  Ore- 

2  U.  S.  Rev.  Stats.,  sec.  2339.  gon     for     1909-10     (Third    Report),, 

*  Basey  T.  Gallagher,  20  Wall.  (87  pages  5,  7  and  82,  84. 


152  (3d  ed.)     Pt.  II.     CALIFORNIA  -  COLORADO  DOCTRINES. 
(3d  ed.) 

§  125.  Same — Legislation  in  1911. — In  the  legislation  of  this 
year  the  most  extensive  changes  were  in  California.  For  the  first 
time  there  now  appears  upon  the  statute  books  in  California  the 
declaration,  borrowed  from  Wyoming,  that  waters  in  California 
are  "the  property  of  the  people  of  the  State";  and  the  Wyoming 
system  of  administration  by  a  Board  of  Control  has  been  enacted 
in  California  to  cover  water-power  development  (but  covering  such 
uses  only).  A  resolution  was  also  adopted  for  a  constitutional 
amendment  to  create  a  Public  Service  Commission  in  California, 
with  control  over  distribution  of  water  to  public  uses;  and  such 
commissions  were  established  in  Kansas,  Oregon,  Washington  and 
Nevada.  Further,  a  Conservation  Commission  was  created  in  Cali- 
fornia to  investigate  water  laws  and  water  resources,  and  the  one 
already  existing  in  Utah  was  given  increased  power  over  deciding 
what  uses  of  streams  are  most  in  the  public  interest.  The  California 
statute  for  power  projects  follows  the  Wyoming  rule  that  projects 
may  be  denied  if  the  Board  of  Control  considers  them  against  public 
interest.  In  California  there  was  further  created  a  State  Board  of 
Engineering  and  a  State  Engineer,  with  duties,  among  others,  of 
investigating  water  resources. 

Power  projects  are  limited  to  twenty-five  years  in  the  California 
statute,  and  a  graduated  royalty  or  tax  upon  horsepower  is  im- 
posed. In  Oregon  the  existing  tax  was  not  changed,  and  a  new  one 
was  placed  upon  projects  that  had  not  been  included  in  the  law  of 
1909. 

Idaho,  Oregon,  and  Utah  passed  acts  restricting,  in  some  features, 
the  power  of  the  officials  in  cancellation  or  rejection  of  permits. 
The  irrigation  district  statutes  were  amended  in  most  States.  The 
bill  in  Colorado  which  evoked  most  interest  was  the  Carpenter  Bill, 
with  Parrish  Amendment,  to  repeal  a  preference,  appearing  in  an 
earlier  statute,  given  to  irrigation  by  direct  application  of  flow 
from  a  stream,  over  irrigation  from  reservoirs  supplied  from  the 
same  stream.  At  the  present  writing,  the  bill  has  passed  both 
houses,  and  will  probably  be  signed  by  the  governor. 

The  most  interesting  feature  of  this  year's  water  legislation  con- 
cerns interstate  streams.  California  passed  a  resolution  protesting 
against  diversion  into  Nevada  of  the  waters  of  Lake  Tahoe,  on  the 
California-Nevada  line  and  declaring  the  Lake  to  be  mainly  the 
property  of  California,  and  the  Nevada  legislature  resolved  that 


§126  Ch.6.     HISTORICAL— 1866  TO   THE  PEESENT.     (3d  ed.)   153 

the  diversion  should  be  allowed,  "notwithstanding  the  protest  of 
the  people  of  the  State  of  California,  whose  claim  to  those  waters 
we  do  not  concede."  California  further  enacted  that  waters  with- 
in its  boundaries  are  the  property  of  the  State,  and  prohibited 
their  diversion  to  points  outside  of  the  State,  while  Oregon  enacted 
with  reference  thereto  that  the  State  Engineer  of  Oregon  may  refuse 
permits  for  diversion  of  Oregon  waters  to  points  in  another  State 
when  the  latter  would  not  permit  diversion  of  its  waters  for  use  in 
Oregon.  Wyoming  appropriated  funds  to  enable  the  attorney  gen- 
eral of  the  State  to  take  steps  to  protect  the  rights  of  the  State  and 
its  citizens  in  the  waters  of  interstate  streams. 

References  to  these  and  other  less  important  enactments  in  1911 
are  given  in  appropriate  sections  hereafter,  and  also  in  the  col- 
lection of  statutes  in  Part  VIII  of  this  book. 

(3d  ed.) 

§  126.    Effect  of  This  Legislation  upon  Riparian  Rights. — In 

all  of  the  Western  States  there  has  been  an  adoption  of  the  com- 
mon law  as  the  basis  of  the  general  legal  system.9  The  only  stat- 
ute naming  the  common  law  of  riparian  rights  in  order  to  reject 
it  is  that  of  Arizona,  which  has  not  yet  modeled  its  statutes  upon 
the  new  water  codes.  The  Arizona  constitution  says:  "The  com- 
mon-law doctrine  of  riparian  water-rights  shall  not  obtain  or  be  of 
any  force  or  effect  in  this  State. ' ' 10  On  the  other  hand,  the  Oregon 
statute  expressly  mentions  and  preserves  the  existing  rights  of  ripa- 
rian owners;11  and  likewise  Washington.12  Aside  from  these  ex- 
ceptions, the  common  law  of  riparian  rights  is  not  expressly  men- 
tioned in  any  of  these  statutes;  but  is  indirectly  rejected  in  toto 
by  a  provision  that  the  right  to  appropriate  unappropriated  water 
shall  never  be  denied ; 13  or  a  provision  that  the  right  to  waters  can 
arise  by  appropriation  and  in  no  other  way,14  adding  a  phrase 
common  in  the  States  rejecting  riparian  rights  in  toto,  that  "bene- 

9  United  States  v.  Eiq  Grande  Co.,      provision  is  substantially  the  same  in 
174  U.  S.  690,  19  Sup.  Ct.  Rep.  770,       the   territorial   statutes. 

43  L.  Ed.  1136.  u  Laws  1909,  c.  216,  sec.  70   (see, 

10  Ariz.  Const.,  art.  XVII,  sec.   1.      also,  sec.  1) ;  Laws  1905,  c.  228. 
Copied    from    Rev.    Stats.    1901,    sec.  12  Infra,  sec.  1448. 

4168   (Civ.  Code).     See  Boquillas  etc.  13  Citations  supra,  sec.  108. 

Co.  v.  Curtis,  213  U.  S.  339,  29  Sup.  14  For   example,   Nev.   Comp.  Laws 

Ct.  Rep.  493,  53  L.  Ed.  822,  affirming  1900,   sec.   359;   Nev.   Stats.    1907,   p. 

Same  v.  Same,  11  Ariz.  128,  89  Pac.  30,  sec.  7;  Oregon  Laws  1909,  c.  216, 

504.     This    constitution    has    not    yet  sec.  Ij   Utah  Laws  1905,  c.  108,  sec. 

been    ratified    by    Congress;    but    the  34. 


154  (3ded.)     Pt.  II.     CALIFORNIA- COLORADO  DOCTRINES.  §126 

ficial  use  shall  be  the  basis,  the  measure  and  the  limit  of  all  rights 
to  the  use  of  water."15  The  Oregon  statute  of  1909  provides: 
"This  act  shall  not  be  held  to  bestow  upon  any  person,  association 
or  corporation,  any  riparian  rights  where  no  such  rights  existed 
prior  to  the  time  this  act  takes  effect,"16  and  existing  riparian 
owners  are,  it  appears,  required  to  have  their  rights  established  like 
appropriators,  and  are  to  be  allowed  only  such  water  as  is  in  bene- 
ficial use  by  them  at  the  date  of  adjudication.17  In  Idaho  it  is  de- 
clared that  the  right  to  appropriate  unappropriated  water  shall 
never  be  denied,  and  that  priority  of  appropriation  gives  the  better 
right  in  appropriation  of  water,18  and  that  "all  rights  to  divert  and 
use  the  waters  of  this  State  for  beneficial  purposes  shall  hereafter  be 
acquired  and  confirmed  under  the  provisions  of  this  act."19  Simi- 
lar provisions  exjst  in  most  States.  At  the  same  time  they  fre- 
quently contain  a  provision  saving  all  existing  rights.20 

Most  of  the  States  adopting  this  legislation  hostile  to  the  common 
law  of  riparian  rights  are,  as  has  been  said,  the  arid  States,  where 
the  courts  had  previously  taken  the  same  attitude.  In  Nebraska, 
North  Dakota,  Oregon  and  South  Dakota,  however,  the  courts  had 
previously  followed  the  California  doctrine  recognizing  and  enforc- 
ing the  rights  of  riparian  proprietors.21  In  the  last  three,  these 
statutes  being  only  adopted  recently,  there  has  been  no  chance  for 
testing  their  effect  upon  the  existing  rights  of  riparian  proprietors ; 
but  in  Nebraska22  the  matter  gave  rise  to  much  litigation,  and  the 
court  held23  that  it  would  be  beyond  the  power  of  the  -legislature, 
after  riparian  rights  had  been  recognized  and  vested,  to  deprive 
riparian  owners  of  those  rights  hitherto  enjoyed  by  them.  Statutes 
such  as  these,  the  court  held,  cannot  take  away  the  rights  of  exist- 
ing riparian  owners,  as  it  would  be  a  taking  of  property  without 
due  process  of  law.  In  its  opinion  the  court  says:  "The  right  of 
a  riparian  proprietor  to  the  reasonable  use  of  water  flowing  in  a 

15  Citations  infra,  sec.  478.  larging,  abridging  or  restricting  such 

16  Oregon   Laws   1909,   c.   216,  sec.       rights."     Sec,  likewise,  Nevada  Stats. 
70,  subcL   8.  1909,    p.  31;    N.    M.    Laws  1907,  p. 

17  Ibid,  sees.  13,  70,  et  alia.  71,  sec.  59. 

is  Idaho  Const.,  art.  15,  sec.  3.  21  Supra,  sec.  117. 

19  Stats.   1903,  p.  223,  sec.  41.  22  The  legislation  in  Nebraska  was 

20  Nevada  Stats.  1907,  p.  30,  see.  2,  substantially  an  adoption  of  the  Wy- 
saying,  "All  existing   rights  to  the  use  oming    laws.     Farmers'    Irr.    Dist.    v. 
of  water,  whether  acquired  by  appro-  Frank,  72  Neb.  136,  100  N.  W.  286. 
priation     or     otherwise,     shall   be   re-  23  Crawford   Co.   v.    Hathaway,   67 
spected    and    preserved,    and     nothing  Neb.   325,   108  Am.   St.  Rep.   647,   93 
in  this  act  shall  be  construed  as  en-  N.  W.  781,  60  L.  B.  A.  889. 


§  126  Ch.  6.     HISTOETCAL— 1866   TO   THE  PRESENT.     (3d  ed.)   155 

natural  channel  is  property,  which  is  protected  by  the  aegis  of  the 
constitution,  and  of  which  he  cannot  be  deprived  against  his  will, 
except  for  public  use,  and  upon  due  compensation  for  the  injury 
sustained.  If  the  legislature  had  undertaken  to  sweep  away  and 
abolish  this  right,  we  would  not  be  warranted  in  giving  the  act 
judicial  sanction.  Where,  by  any  possible  construction  of  a  reason- 
able nature,  legislation  can  be  upheld,  it  is  our  duty  to  give  it 
such  a  construction  as  will  uphold,  rather  than  destroy  it.  The 
irrigation  act  of  1895  is  valid  when  construed  as  not  interfering 
with  vested  property  rights  which  have  been  acquired  by  riparian 
proprietors. ' ' 

A  recent  California  case  very  emphatically  denies  power  in  the 
legislature  to  restrict  the  right  of  existing  riparian  owners,24  and  the 
new  California  water-power  statute  above  mentioned  says  that  it 
"shall  not  impair  or  affect  any  rights  to  water  or  the  use  of  water 
which  shall  have  become  vested  prior  to  the  making  of  the  applica- 
tion above  provided  for."25 

The  Nebraska  decisions  upheld  the  statute  as  introducing  ap- 
propriation, and  abrogating  riparian  rights  accruing  thenceforth 
(that  is,  upon  public  land  that  may  be  patented  thereafter), 
and  considered  appropriation  as  resting  solely  on  these  statutes, 
holding  that  before  the  statutes  appropriation  did  not  exist  at  all.26 
In  so  far  as  Nebraska  upholds  the  abrogation  of  the  common  law 
by  State  statute  for  future  patents,  it  is  contrary  to  Lux  v.  Hag- 
gin.  The  California  court  placed  its  decision  to  a  great  extent  on 
the  ground  that  abrogating  the  rule  of  riparian  rights  would  in- 
terfere with  the  primary  disposal  of  the  Federal  lands,  an  inter- 
ference not  depending  upon  the  date  of  a  statute,  and  equally  an 

24  Miller   v.   Maclera   Co.,   155   Cal.  the   state,   as   described   in   section   1, 

59,  99  Pac.  502,  22  L.  R.  A.,  N.  S.,  are  thereby  declared  to  be  the  prop- 

391.  erty  of  the  public,  and  may  be   ac- 

See,  also,  a  quaere  regarding  rights  quired    by    appropriation    for    irriga- 

if   once  vested,  in   Boquillas   etc.   Co.  tion,  cannot  operate  on  the  rights  of 

v.  Curtis,   11   Ariz.   128,  89  Pac.  504,  riparian    owners,     existing    when    the 

213  U.  S.  339,  29  Sup.  Ct.  Rep.  493,  law  was  passed,  but  was  intended  to 

53    L.    Ed.    822.     Quaere,   also,    what  operate  only   on  such  interest   as  the 

might  be  the  bearing,  if  any,  of  the  state  had  by  reason  of  its  ownership 

doctrine  of  Muhlker  v.  New  York  etc.  of  land  bordering  on  natural  streams. 

Co.,  197  U.  S.  544.  25  Sup.  Ct.  Rep.  McGee     Irr.     Ditch     Co.     v.     Hudson 

522,  49  L.  Ed.   872?  (Tex.  Sup.),  22  S.  W.  967. 

In  Texas  it  was  held  that  General  25  Stats.  1911,  c.  406,  sec.  14.     See 

Laws   of    1889,   page    100,   section    2,  infra,  see.  1193. 

providing     that     the     unappropriated  26  Meng    v.    Coffey,    67    Neb.    500, 

waters     of     every     river     or     natural  ]08   Am.   St.   Rep.   697,   60   L.   R.   A. 

stream   within    the    arid    portions    of  910,  93  N.  W.  715. 


156  (3d  ed.)     Pt.  EL     CALIFORNIA  -  COLOEADO  DOCTEINES.  §  127 

interference  if  only  abrogating  for  future  patented  land.  To  this 
extent  departing  from  Lux  v.  Haggin,  the  Nebraska  court  said:1 
"That  it  was  competent  for  the  legislature  to  abrogate  the  rule  of 
the  common  law  as  to  riparian  ownership  in  waters  as  to  all  rights 
which  might  have  been  acquired  in  the  future,  and  substitute  a 
system  of  laws  providing  for  the  appropriation  and  application  of 
all  the  unappropriated  waters  of  the  State  to  the  beneficial  uses  as 
therein  contemplated,  there  exists,  it  would  seem,  no  reasonable 
doubt."2  As  the  decision  in  Lux  v.  Haggin  was  rested  largely  on 
constitutional  grounds,  a  strict  adherence  to  the  California  doctrine 
does  not  recognize  any  power  in  the  legislature  to  abrogate  ripa- 
rian rights  present  or  future.  As  to  present  rights,  it  would  take 
them  away  without  due  process  of  law  (that  is  clear ),2a  and  as  to 
future  patents,  Lux  v.  Haggin  held  that  it  would  interfere  with 
the  primary  disposal  of  the  public  lands  (which,  however,  in  view 
of  Kansas  v.  Colorado,3  while  not  disproved,  has  been  cast  in 
doubt). 

The  question  under  the  new  Oregon  act  is  considerably  affected 
by  the  recent  decision  in  Hough  v.  Porter  elsewhere  considered.4 

(3d  ed.) 

§  127.  Irrigation  Districts — Wright  Act.— The  California  leg- 
islature in  1872  passed  an  act5  providing  that  the  owners  of  land 
susceptible  of  one  mode  of  irrigation  may  combine  for  the  common 
purpose,  contributing  the  water-rights  owned  by  each  or  acquiring 
new  ones  in  the  usual  ways.  Similar  legislation  already  existed 
for  the  formation  of  "Reclamation  Districts"  to  reclaim  swamp 
lands.6  In  1887  7  the  statute  well  known  as  the  "Wright  Act"  was 
passed  for  the  same  purpose,  an  elaborate  statute  providing  for 
the  formation  of  irrigation  districts.  It  was  held  in  violation  of 
the  constitution  of  the  United  States  by  Judge  Ross  in  the  southern 

1  Crawford    Co.    v.     Hathaway,    67  vested    property    rights    without     due 
Neb.   325,  108  Am.   St.   Rep.   647,  93  compensation,    contrary    to    constitu- 
N.  W.  781,  60  L.  R.  A.  889,  supra.  tional     provisions     in     that     regard." 

2  The  Nebraska  court  further  held  Citing   Clark   v.    Cambridge   Irr.    Co., 
in  the  same  case:   "In  the  irrigation  supra. 

act  of  1889  the  legislature    sought  to  2a  See  infra  sec   1193 

classify    the    streams    in    this     State,  3  2Q6   ^    s'  46'  27   s         Ct    ^ 

and   restrict  riparian   rights   to   those  65g    g£  jj  -^    ^ 

owning    lands    bordering    on    streams  ' 

not   exceeding   a   certain    width;    but  4  Infra>  sec-   129. 

this  attempted  restriction  proved  abor-  5  Stats.   1871-72,  pp.   945-948. 

tive  as  an  unwarranted  act  calculated  6  Infra,  sec.  350. 

to    dejprive    riparian    proprietors    of  7  Act  of  March  7,  1887. 


§128  Ch.  6.     HISTORICAL— 1866   TO   THE  PEESENT.     (3d  ed.)   157 

district  of  California,8  but  on  appeal  to  the  supreme  court  of  the 
United  States  was  upheld,9  reversing  Judge  Ross.  It  has  been 
copied  in  many  other  States  and  it's  constitutionality  since  always 
upheld.  The  act  was  repealed  in  California  and  a  new  act  passed 
in  1897,  which  has  been  since  amended.  Statutes  for  the  formation 
of  irrigation  districts  based  on  the  Wright  Act  of  California  exist 
in  California,  Colorado,  Idaho,  Kansas,  Montana,  Nebraska,  Nevada, 
New  Mexico,  Oregon,  Texas,  Utah,  Washington  and  Wyoming.10 

The  law  of  irrigation  districts  is  further  considered  elsewhere  in 
this  book.11 


D.  LATER  AND  RECENT  FEDERAL  LEGISLATION. 

(3d  ed.) 

§  128.     The  Desert  Land  Act.— Since  the  statutes  of  1866  and 

1870,  Congress  has  only  indirectly  touched  the  subject  of  private 
rights  in  waters.  In  1877,  by  the  Desert  Land  Act,12  the  right  to 
appropriate  such  an  amount  of  water  as  might  be  necessarily  used 
for  the  purpose  of  irrigation  and  reclamation  of  desert  land,  part 
of  the  public  domain,  was  granted,  and  it  was  further  declared, 
"Provided,  however,  that  the  right  to  the  use  of  water  by  the  per- 
son so  conducting  the  same,  on  or  to  any  tract  of  desert  land  of 
six  hundred  and  forty  acres  shall  depend  upon  bona  fide  prior  ap- 
propriation; and  such  right  shall  not  exceed  the  amount  of  water 
actually  appropriated,  and  necessarily  used  for  the  purpose  of  irri- 
gation and  reclamation ;  and  all  surplus  water  over  and  above  such 
actual  appropriation  and  use,  together  with  the  water  of  all  lakes, 
rivers,  and  other  sources  of  water  supply  upon  the  public  lands 
and  not  navigable,  shall  remain  and  be  held  free  for  the  appropria- 
tion and  use  of  the  public  for  irrigation,  mining  and  manufacturing 
purposes,  subject  to  existing  rights."  13 

8  Bradley   v.    Fallbrook   Irr.    Dist.,  C.  March  28;  1908,  35  Stat.  52.     This 
68  Fed.  948.  statute  applied  to  the  entire  West  ex- 

9  Fallbrook    Irr.    Dist.    v.    Bradley,  cept  Colorado,  which  was  included  in 
164  U.  S.   112,   17  Sup.  Ct.  Rep.  56,  189].     1   Supp.   Rev.   Stats.   941,   942. 
41  L.  Ed.  369.  13  The    act    of    1877    is   considered 

10  See  statutes  collected  infra,  c.  58,  to  some  extent  in  the  following  cases : 
sec.  1356  et  seq.  Williams   v.   Altnow,   51    Or.   275,   95 

11  Infra,  sec.  1356  et  seq.  Pac.  200,  97  Pac.  539;   Farm  Invest- 

12  Act  of  Congress  March  3,  1877,  ment   Co.   v.   Carpenter,   9   Wyo.   110, 
19  Stats,  at  Large,  377,  e.  107,  U.  S.  87   Am.   St.   Rep.   918,   61   Pac.   258, 
Comp.  Stats.  1901,  p.  1549.     See,  also,  50  L.  R.  A.   747;    United    States  v. 
A.   C.   June   27,    1906,   34   Stat.   520;  Conrad    Inv.    Co.    (C.    C.),    156    Fed. 
A.  C.  March  26,  1908,  35  Stat.  48;  A.  123,  128;  United  States  v.  Rio  Grande 


158  (3ded.)     Ft.  II.     CALIFOENIA-COLOEADODOCTKINES.  8  129 

Whatever  may  be  the  beneficial  result  of  construing  these  pro- 
visos one  way  rather  than  another,  until  the  recent  Oregon  decision 
fbelow  considered  they  were  regarded  as  but  declaratory  of  the  act 
pa  '  1866  and  inserted  in  the  Desert  Land  Act  only  out  of  abundant 
tVNon  as  a  repetition  of  the  former  statute;  that  is,  repeating 
ine  po.  »  ^  <<f^e  development"  as  to  the  waters  while  on  public 

^tfted  States  circuit  court  of  appeals  held  the  law  under 
this  statute  to  be  ^  .  ^  ^  game  &g  under  ^  act  of  1866> 

nether  of  them  having  ap,  :.cation  to  ^^  diyerted  subsequent 
to  the  patenting  of  the  riparian  ^  over  wMch  they  flowed>  but 
only  to  waters  flowing  over  unoccut  .^  bHc  land  at  the  time  of 
the  diversion.14 

(3d  ed.) 

§  129.    Same  -Hough  v.  Porter.-But  a  Vc         recent  Oregon 
decision  has  established  for  Oregon  a  new  systeL 


wa^er  law 

upon  the  basis  of  this  act.     In  Hough  v.  Porter15  it  ."  wag  ^eid  ^hat 
with  the  exceptions  below  noted,  the  common  law  of  rip  ,arjan  rights 
was  abrogated  by  Congress  in  this  act  as  to  all  public  I  ian(j    an(j 
that  thereafter  the  passing  of  land  into  private  title  does  i£  ,0{.  pre. 
vent  the  diversion  of  water  therefrom  against  a  landowner  wh    o  ^as 
not  himself  put  it  to  use  when  diverted  from  his  land.     The  c.   o 
reaffirms  that  both  this  act  and  the  act  of  1866  enact  for  wa. 
while  on  public  land  the  policy  of  "free  development,"  or,  as 
is  here  put,  a  dedication  of  the  waters  to  the  public  while  on  publ. 
land;  but  it  further  holds  that-  the  Desert  Land  Act  made  thil 
dedication  irrevocable  so  that  it  remains  attached  to  the  waters 


Irr.  Co.,  174  U.  S.  690,  19  Sup.  Ct. 
Eep.  770,  43  L.  Ed.  1136;  Gutierres 
v.  Albuquerque  Land  Co.,  188  U.  S. 
545,  23  Sup.  Ct.  Eep.  338,  47  L.  Ed. 
588;  Kansas  v.  Colorado,  206  U.  S. 
46,  27  Sup.  Ct.  Eep.  655,  51  L.  Ed. 
956;  State  ex  rel.  Liberty  Lake  Ice 
Co.  v.  Superior  Court,  Spokane 
County,  47  Wash.  310,  91  Pac.  968; 
Hough  v.  Porter,  51  Or.  318,  95  Pae. 
732,  98  Pac.  1083,  102  Pae.  728; 
Winters  v.  United  States,  143  Fed. 
740,  74  C.  C.  A.  666;  S.  C.,  207  U.  S. 
564,  28  Sup.  Ct.  Eep.  208,  52  L.  Ed. 
340. 

Eegarding  land  entries  under  this 
act,  questions  of  land  law  rather  than 
water  law  are  involved,  and  the  act 
is  here  considered  only  with  reference 
to  its  bearing  upon  general  water 


questions,  and  not  with  reference  to 
acquisition  of  land  titles  under  the 
act.  Circulars  of  the  General  Land 
Office  may  be  obtained  upon  applica- 
tion,  dealing  with  the  land  questions, 
such  as  the  irrigable  character  of  the 
land,  the  amount  of  irrigation  for 
which  proof  is  required,  and  similar 
matters.  Eegulations  are  also  printed 
in  39  Land  Dee.  253.  See,  also,  for 
example,  37  Land  Dec.  317,  and  38 
Land  Dec.  157  (stock  in  irrigation 
company  as  expenditure  under  the 
act);  38  Land  Dec.  420;  38  Land 
Dec.  438;  39  Land  Dec.  285. 

14  Winters    v.    United    States,    143 
Fed.  740,  74  C.  C.  A.  666. 

15  (1909)  51  Or.  318,  95  Pac.  732; 
98   Pac.   1083,   102   Pae.   728,   rehear- 
ing  denied,  102  Pac.  731. 


§129 


Ch.  6.     HISTORICAL— 1866   TO   THE  PRESENT.     (3d  ed.)   159 


(even  though  as  yet  unappropriated)  when  the  lands  over  which 
they  flow  are  patented.  Consequently,  the  doctrine  of  riparian 
rights  (with  the  exception  below)  was  held  inapplicable  to  any  of 
the  many  claimants  in  the  case,  because  their  riparian  patents, 
although  in  numerous  instances  issued  prior  to  the  appropriation 
of  water  by  others,  had  issued  subsequent  to  the  passage  of  the  act 
of  1877.15a 

The  exceptions  recognized  in  the  decision  are:  (1)  lands  patented 
before  1877;  (2)  waters  in  actual  use  by  the  riparian  owner;  and 
(3)  the  common-law  right  to  a  perpetual  (though  unused)  flow 
of  such  quantity  as  could  in  the  future  be  used  for  domestic  use 
and  stock-raising.  The  reason  for  the  first  and  second  is  obvious ; 
the  reason  for  the  third  lay  partly  in  an  Oregon  statute  which  was 
held  to  prevent  going  further,16  but  chiefly  the  use  of  the  words 
"irrigation,  mining  and  manufacturing"  in  the  Desert  Land  Act, 
which  words  were  held  to  restrict  the  abrogation  to  water  claimed 
by  a  riparian  owner  for  those  purposes.  Indeed,  as  to  domestic 
use,  the  preservation  of  the  common-law  riparian  right  for  that 
purpose  is  strongly  upheld  upon  principle.17  Upon  principle  the 
court  thus  concludes,  as  a  matter  of  policy,  that  the  common  law  of 
riparian  rights  is  better  adapted  to  domestic  use  than  is  the  law 
of  appropriation,  while  the  latter  is  better  for  irrigation,  mining 


i5a  It  may  be  pertinent  to  note  that 
there  may  be  some  connection  between 
the  proviso  in  the  Desert  Land  Act 
and  a  California  resolution  of  the 
same  year  (Laws  1877,  p.  1070),  call- 
ing upon  Congress  to  abrogate  ripa- 
rian rights  and  to  declare  as  to  waters 
"that  the  same  be  granted  and  dedi- 
cated to  the  States  and  Territories 
where  the  same  are  situated." 

16  Sec.  5000,   B.   &  C.  Comp.     See 
supra,  sec.  119,  "Landowner"  statute. 

17  In    this    regard    the    court    said 
(per   Mr.    Justice   King)  :    "The    lan- 
guage used  in  this  act   [Desert  Land 
Act  of  1877]  was  clearly  intended  to 
change   the   rule   respecting  the   right 
of  riparians  to  the  use  of  water  for 
irrigation,     mining    and    power    pur- 
poses;  but  as  in  the  last  case  cited, 
it  has  its  limits.     It  does  not  go  so 
far  as  to  affect  the  rights  originally 
giving  rise  to  the  doctrine  of  riparian 
rights;   that  is,  for  domestic  use,  in- 
cluding the  watering  of  domestic  ani- 
mals and  such  stock  as  may  be  essen- 


tial to  the  sustenance  of  the  owners 
of  lands  adjacent  to  the  streams  or 
other  bodies  of  water.  [Nor,  it  is 
held,  does  it  allow  interference  with 
navigation.]  ....  Presumably  the  best 
possible  results  for  all  concerned  were 
intended,  which  it  is  clear  could  best 
be  obtained  by  permitting  the  settle.r 
to  retain  the  quantity  of  water  essen- 
tial to  the  sustenance  of  his  family 
and  to  other  natural  wants  incident 
thereto,  but,  if  he  does  not  see  proper 
to  apply  it  to  any  of  the  uses  specified 
in  the  act,  then  to  permit  the  first 
home-builder  on  other  lands  to  make 
such  use  of  it  as  will  bring  into  cul- 
tivation the  lands  not  adjacent  to  the 
streams,  thereby  protecting  the  set- 
tlers upon  both  classes  of  lands,  and  at 
the  same  time  not  only  encourage 
home  building  but  enable  the  govern- 
ment to  dispose  of  more  of  its  lands, 
and  to  enhance  its  revenues  propor- 
tionately." Hough  v.  Porter,  51  Or. 
318,  95  Pac.  732,  98  Pac.  1083,  102 
Pac.  728. 


160  (3ded.)     Pt.  H.     CALIFORNIA- COLORADO  DOCTRINES.  §130 

and  manufacturing,  and  that  the  act  of  1877  is  in  accord  with  this 
view  of  the  proper  policy. 

But  with  these  exceptions,  there  are,  under  this  decision,  no  ripa- 
rian rights  to  unused  water  in  Oregon  for  lands  patented  since 
1877.18 

(3d  ed.) 

§  130.    Same — New  Oregon  Doctrine   Based   on  the   Desert 

Land  Act. — As  already  said,  this  view  is  as  yet  confined  to  Ore- 
gon, for  until  this  decision  the  Desert  Land  Act  had  not  really 
entered  the  discussion  of  water  law  in  the  decisions  or  text-books. 
Into  California  law,  especially,  it  has  never  entered;  the  writer 
recalls  no  case  in  which,  it  was  even  cited,  and  feels  that  it  can  be 
confidently  said  that  no  California  case  has  made  it  the  basis  of 
actual  decision  regarding  water-rights.  The  California  law  has  re- 
garded the  act  of  1866  as  the  sole  "charter"  of  Western  water 
law,  and  all  subsequent  acts  of  Congress  as  subordinate  thereto 
and  merely  declaratory  thereof.  The  Oregon  court  in  Hough  v. 
Porter  also  says:  "So  far  as  we  are  able  to  determine,  the  question, 
as  here  presented,  has  not  heretofore  been  squarely  before  any  of 
the  courts,"  and  upon  petition  for  rehearing19  occurs  the  expres- 
sion, "a  doctrine  hitherto  unknown."  That,  however,  if  the  policy 
taken  be  good,  is  rather  a  merit  of  the  decision,  since -it  was  made 
with  full  knowledge  of  that  fact,  and  only  after  a  learned  exam- 
ination of  the  previous  law.  The  decision  was  also  preceded  by 
intimations  to  the  same  effect  in  other  recent  Oregon  cases,20  and 
since  then  the  supreme  court  of  the  United  States  has  declared 
it  to  rest  on  plausible  grounds.21 

It  is  an  entirely  new  phase  of  the  law  that  is  thus  presented, 
and  only  time  can  show  what  effect  this  decision  will  have,  though 

18  In  an  extended  opinion,  the  court,  only  the  riparian  rights  of  land  pat- 
through  Mr.  Justice  King,  said :  "Con-  ents   issued   before   1877,   and   before 
strued,  then,  with  the  act  of  1866  and  any  appropriation  had  been  made  of 
other   provisions   of   the  act  of   1877,  water  thereon. 
we  are  of  the  opinion  that  all  lands  ,0  r-i    /->      nio    -ma  -n 
settled  upon  after  the  date  of  the  lat-  M  19  *l  <*•  318>  102  Pac'  729>  Petl" 
ter  act  were  accepted  with  the  implied  t101    lem€d- 

understanding  that,  except  as  herein-  20  Davis  v.  Chamberlain,  51  Or.  304, 

after  stated,  the  first  to  appropriate  98  Pac.  154;   Williams  v.  Altnow.  51 

and   use  the   water   for   the   purposes  Or.   275,   95   Pac.   200,   97   Pac.   539; 

specified   in   the   act   should   have   the  Hough  v.  Porter,  51  Or.  318,  95  Pac. 

superior  right  thereto";  and  that  ap-  732. 

propriation     becomes     practically    the  21  Boquillas  etc.  Co.  v.  Curtis,  213 

•ole  law  of  use  for  irrigation,  mining  U.  S.  339,  29  Sup.  Ct  Bep.  493,  53  L. 

•jr  manufacturing  in  Oregon  excepting  Ed.  822. 


§  131  Ch.  6.     HISTORICAL— 1866   TO   THE  PRESENT.     (3d  ed.)   161 

its  importance  seems  to  indicate  much  discussion  of  it  in  and  out 
of  Oregon.22  The  proviso  in  the  Desert  Land  Act  (however  it  be 
construed)  applies  to  the  remaining  public  land  in  all  States, 
California  included. 

(3d  ed.) 

§  131.    Federal  Right  of  Way  and  Reservoir  Site  Acts.— In 

1888,  an  appropriation  bill  provided  for  an  examination  of  feasible 
plans  for  reservoirs  and  irrigation  projects,  irrigable  lands,  etc., 
to  be  withdrawn  from  entry  (similar  to  the  National  Irrigation  Law 
of  June  17,  1902 ).23  In  1890  the  reservation  of  lands,  excepting 
for  reservoir  sites,  was  repealed.24  In  the  same  year  (1890)  patents 
for  land  were  made  subject  to  (reserving)  rights  of  way  for  ditchea 
and  canals,  west  of  one  hundredth  meridian  "constructed  by  the 
authority  of  the  United  States."25  This  is  the  only  act  prior  to 
the  National  Irrigation  Act  which  applies  to  Federal  ditch  build- 
ing, that  not  being  covered  by  the  act  of  1866,  Revised  Statutes, 
2339,  2340.1  All  private  land  since  patented  is  subject  to  gov- 
ernment ditch  building.2 

In  1891  right  of  way  over  public  lands  and  government  reser- 
vations was  granted  for  reservoirs,  canals  and  ditches  upon  filing 
articles  of  incorporation,  maps  and  statements  in  the  land  office,3 
and  the  act  has  been  since  supplemented,  especially  in  1901  and 
1905  and  1911.  The  act  of  March  3,  1891,  was  intended  to  ba 
cumulative  to  the  act  of  1866,  which  required  no  filings.  The  con- 
struction of  these  acts  is  being  extended  and  their  scope  is  being 
enlarged  to  cover  a  rapidly  developing  system  of  Federal  law. 
In  1911  a  new  act  allows  power  rights  of  way  and  reservoir  sites 
to  be  granted  for  fifty  years.  Further  comment  is  given  later  here- 
in.4 

22  A  recent  Washington  case  men-          <  See  infra,  sees.  203,  208,  211,  430 
tions  the  matter  and  leaves  it  open.       et  seq. 

Spokane    Co.    v.    Arthur    Jones    Co.  The  following  is  an  enumeration  of 

(1909),  53  Wash.  37,  101  Pac.  515.  the  Federal  right   of  way  acts:    Rev. 

23  1  Supp.  Rev.  Stats.  698.  Stats.    2339,    2340;    A.   C.    Aug.   30, 

24  Id.,   pp.   791,   792.  1890,   26  Stat.  391;     A.  C.  March  3, 

25  Ibid.,  p.  792;  26  Stats,  at  Large,  1891,  26  Stat.   1101;    A.   C.  Jan.   21, 
391.  1895,    28    Stat.    635;    A.   C.    Jan.    13, 

1  Green  v.  Wilhite,   160   Fed.   755;  1897,   29   Stats.   484;   A.   C.   May   11, 
Same  v.  Same,  14  Idaho,  238,  93  Pac.  1898,    30    Stat.   404;    A.   C.   Feb.    15, 
971.  1901,  31  Stat.  790;  A.  C.  Feb.  1,  1905, 

2  Ibid.  33   Stat.   628;   A.   C.   March  4,   1911, 

3  26    Stats.    1095;     1    Supp.    Rev.  being  part   of   the   appropriation  act 
Stats.  946.  for  the  Department  of  Agriculture. 

Water  Rights — 11 


162   (3ded.)     Pt.  II.    CALIFORNIA  -  COLORADO  DOCTEINES.     §§132,133 

The  purport  of  congressional  action  has  been  almost  entirely 
(until  the  recent  national  conservation  movement)  to  facilitate  the 
development  of  the  public  domain  under  the  local  law  of  each  State ; 
and  usually  provisos  were  placed  in  the  acts  that  they  should  not 
interfere  with  State  control  over  waters.  A  collection  of  these 
provisos  is  made  in  a  later  chapter.5 

(3d  ed.) 

§  132.  Carey  Act. — To  aid  the  States  in  the  reclamation,  set- 
tlement, and  cultivation  of  the  arid  land,  an  act  of  Congress,6 
commonly  called  the  Carey  Act,  granted  to  each  State  not  exceed- 
ing one  million  acres  of  public  lands  upon  condition  that  the  State 
should  cause  to  be  irrigated,  reclaimed,  occupied,  and  cultivated 
by  actual  settlers  twenty  acres  of  each  one  hundred  and  sixty  acre 
tract  within  ten  years  after  the  passage  of  the  act.  The  act  has 
been  since  amended  in  important  points.  A  separate  chapter  here- 
after is  devoted  to  this  act.7 

(3d  ed.) 

§  133.  National  Irrigation  Act. — The  National  Irrigation  Act 
(passed  in  the  year  1902)  8  does  not  directly  affect  the  law  of 
waters.  It  aims  at  the  building  of  irrigation  works  by  national 
financial  and  engineering  aid  under  existing  State  taws  concerning 
waters.  The  essence  of  the  National  Irrigation  Act  is  that  the 
United  States  as  landowner  provides  for  certain  engineering  pro- 
jects upon  its  lands,  to  be  carried  out  in  conformity  with  State 
law.  Indirectly,  it  has  had  much  influence,  in  that  the  water 
codes  of  most  of  the  States  and  Territories  above  mentioned  were 
adopted  under  the  influence  of  the  Reclamation  Service  for  the 
purpose  of  forwarding  the  work  of  the  Federal  government. 

President  Roosevelt,  in  an  annual  message,9  among  other  things, 
said:  "The  distribution  of  the  water,  the  division  of  the  streams 
among  irrigators,  should  be  left  to  the  settlers  themselves  in  con- 
formity with  State  laws  and  without  interference  with  those  laws 
or  with  vested  rights. ' '  In  another  annual  message  10  he  stated : 

5  Infra,  sec.   176,  and  sec.   1429.  9  To    the    Fifty-seventh    Congress, 

6  Section  4  of  the  Civil  Appropria-       1st   Session,   Cong.   Recv   vol.   35,   pp. 
tion    Act    of    the   fiscal   year     ending       85,  86. 

June  30,  1895,  dated  August  4,  1894           ™  Of    December    6,     1904,   to    the 

(28  Stat.  422).  58th   Congress,   3d   Session,   found   in 

7  Infra,  sec.  1380  et  seq.  volume  39  of  the    Congressional  Ree- 
*  Given  in  full  in  Part  VIII.  ord,  page  14. 


§133  Ch.  6.     HISTOEICAL— 1866   TO   THE   PRESENT.     (3d  ed.)   163 

"The  reclamation  act  has  been  found  to  be  remarkably  complete 
and  effective,  and  so  broad  in  its  provisions  that  a  wide  range  of 

undertakings  has  been  possible  under  it The  act  should  be 

extended  to  include  the  State  of  Texas."  The  act  was  so  extended 
by  Congress  in  1906.  In  1910  an  issuance  of  bonds  for  thirty  mil- 
lion dollars  was  authorized  in  aid  of  the  work.11 

It  has  been  said:  ''At  the  time  the  act  [National  Irrigation  Act] 
was  passed,  the  government  was  the  proprietor  of  boundless  tracts 
of  arid  lands,  practically  worthless  in  their  natural  condition. 
The  smaller,  more  accessible,  streams  had  been  largely  appropriated 
for  the  irrigation  of  private  lands.  Private  capital  had  not,  to  any 
considerable  extent,  looked  with  approval  upon  the  usually  specu- 
lative and  often  perilous  enterprise  of  lifting  from  the  deep  can- 
yons, in  which  they  not  infrequently  flow,  the  waters  of  the  larger 
streams,  for  the  irrigation  of  great  bodies  of  land,  as  yet  either 
wholly  unoccupied,  or  at  most  but  sparsely  settled;  and  as  a  rule 
such  lands  would  not  be  purchased  or  entered  without  some  assur- 
ance of  water  for  their  future  irrigation.  Contemplating  these 
conditions,  Congress  passed  this  act,  primarily  for  the  reclamation 
of  these  public  lands.  The  government,  as  a  proprietor,  was  di- 
rectly interested  in  a  pecuniary  way  in  improving  and  rendering 
marketable  that  for  which,  in  its  natural  condition,  there  was 
neither  use  nor  demand. ' ' 12  The  act  was  not  framed  as  a  basis 
of  national  governmental  functions,  but  contemplates  in  section  6, 
that  when  the  lands  are  settled  up  (under  certain  conditions),  the 
works  and  their  control  shall  pass  to  the  settlers  themselves,  and 
the  United  States  shall  withdraw.13 

11  Chapter   407,   61st   Congress,   2d  ent   upon    them.     It   is    probable,    he 
Session.  says,  that  by  complete  storage  of  all 

12  United  States  v.  Burley   (1909),  the   flood   waters,   by   pumping   water 
172   Fed.    615,   affirmed   in  Burley   v.  from  underground,  and  by  the   most 
United  States,  179  Fed.  1.  thorough  application  of  water  to  the 

13  The    possibilities    of    this    great  soil,  upward  of  fifty  or  sixty  million 
governmental  investment  in  irrigation  acres  may  ultimately  be  reclaimed,  and 
works    are   remarkable.     It   has   been  if  that  is  done  within  the  next  genera- 
said  by  the  director  of  the  Reclamation  tion  or  century,  it  will  probably  result 
Service,  speaking  generally  of  irriga-  in  a  population  of  one  person  to  two 
tion  aside  from  the  act  as  well  as  under  acres  irrigated ;  or  one  person  to  one 
it,    that   up   to   the   present   time,   as  acre  irrigated,  or,  roughly,  fifty  mill- 
shown    by    the    census    investigations,  ions  of  people  may  be  supported  in  ad- 
there  have  been  irrigated  upward   of  dition  to  the  number  now  within  the 
ten  million     acres  within  the  arid  re-  arid  region.     F.  H.  Newell  in  his  testi- 
gion,    and    a   population   of    approxi-  mony  in  Kansas  v.  Colorado,  206  U.  S. 
mately  three  million  persons  is  depend-  46,  27  Sup.  Ct.  Rep.  655,  51  L.  Ed.  956. 


164  (3ded.)    Pt.  II.    CALIFORNIA -COLOR ADO  DOCTRINES.    §§134,135 

The  subject  of  national  irrigation  is  further  considered  in  a  later 
chapter.14 

(3d  ed.) 

§  134.  Water  Users'  Associations. — The  National  Irrigation 
Act  provides  that  the  persons  receiving  water  from  the  government 
systems  shall  organize  into  associations,  in  which  associations  title 
to  the  waterworks  used  shall  vest  in  the  time  and  manner  pre- 
scribed by  the  act.  Preliminary  associations,  called  "water  users' 
associations,"  are  now  being  organized.  Owners  must  agree  to 
turn  over  to  the  management  of  the  association  any  water-rights 
they  may  already  have,  to  be  administered  in  connection  with  the 
additional  water  supply  to  be  furnished  from  the  government 
works.  Some  States  have  passed  statutes  for  the  organization  of 
such  associations  as  corporations.  The  articles  of  incorporation  of 
the  Salt  River  Valley  Water  Users'  Association  in  Arizona  were 
originally  used  as  a  guide  to  the  form  of  drawing  the  articles.  The 
circulars  and  forms  furnished  by  the  Reclamation  Service  and  the 
law  of  each  State  must  be  referred  to. 

A  later  chapter  is  devoted  to  this  matter.15 

(3d  ed.) 

§  135.  Other  Recent  Federal  Legislation. — A  recent  act  of 
Congress  represents  the  first  attempt  on  the  part  of  Congress  to 
directly  affect  the  law  of  waters  in  any  State  (excepting  the  Oregon 
construction  of  the  Desert  Land  Act),  since  the  act  of  1866.  Con- 
gress, in  a  proviso  in  one  act,16  expressly  reserves  out  of  patents, 
and  denies  to  patentees,  any  riparian  rights  on  lands  granted  in 
the  Black  Hills  Forest  Reserve.  The  California  legislature,  after 
the  decision  of  Van  Sickle  v.  Haines,17  had,  many  years  ago,  peti- 
tioned Congress  to  adopt  such  a  course  regarding  the  public  domain 
generally,18  for,  according  to  California  law  as  it  has  hitherto  been, 
that  is  a  matter  which  rests  with  Congress,  as  concerns  waters 
on  the  public  domain  yet  undisposed  of,  and  not  with  the  State. 

An  act  of  first  importance  in  its  bearing  upon  the  future  of  the 
"Western  law  of  waters  is  the  Withdrawal  Act  passed  by  Congress 
in  June,  1910,  giving  the  President  power  to  withdraw  public 

i*  Infra,  cc.  60-63.  17  Supra,  sees.  87,  88. 

15  Infra,  cc.  62,  63.  18  Cal.  Stats.  1877,  p.  1070. 

16  A.  C.,  Act  June  11,  1906,  34  Stat. 
234. 


§136  Ch.  6.  .  HISTORICAL— 1866  TO  THE  PRESENT.     (3d  ed.)   165 

lands  at  will.  Under  it  large  bodies  of  land  have  been  withdrawn 
along  streams,  withholding  access  to  them,  as  is  also  true  of  lands 
withdrawn  by  forest  reservation;  amounting  in  all  to-day  to  two 
hundred  million  acres  of  withdrawn  land.  By  withdrawing  the 
right  of  access  to  streams,  the  State  law  is  thus  being  affected  by 
a  body  of  Federal  law  based  upon  an  extension  of  the  Federal 
Right  of  Way  Acts.19 

(3d  ed.) 

§  136.  Recent  Revival  of  Discussion  of  Federal  Policy.— The 
pioneer  policy  of  "free  development  under  local  law"  stood  for 
half  a  century,  and  the  act  of  1866  enacting  it  remained  the 
"charter"  of  Western  water  law.  In  fact,  so  firmly  did  the  law 
of  appropriation  become  regarded  as  the  fixed  Federal  policy  re- 
garding waters  on  public  lands,  that  numerous  States  passed  that 
statute  by,  and  came  to  regard  it  as  inherent  law  independent  of 
Federal  legislation. 

A  change  of  Federal  policy  is  now  in  progress.  Forest  reserves 
were  created,  beginning  with  the  year  1891,  and  now  cover  (I  was1 
informed  by  Mr.  Graves,  the  Chief  Forester,  estimating  roughly) 
all  timber  land  in  the  public  domain  excepting  about  five  per  cent, 
and  the  policy  of  withdrawing  other  public  lands  also  received 
strong  support,  resulting  in  the  withdrawal  bill  above  mentioned. 

In  the  extension  of  the  reserved  policy  the  effect  upon  existing 
water  law  was  indirect,  for  the  Forest  Service  disclaims  jurisdic- 
tion over  waters  directly,  saying  water  control  rests  with  the  States. 
But  by  control  over  rights  of  way  (that  is,  over  access  to  the 
streams)  Federal  control  over  water  projects  is  advancing  rapidly 
(as  more  particularly  considered  in  a  later  chapter),  although  not 
without  opposition  from  the  States.20 

19  Infra,  sec.  430  et  seq.  constitution   of  the  United   States." 

20  Infra,  e.  19.     The  legislature  of  The   suit   of   Light   v.   United    States 
Colorado   in   1909   authorized   the   at-  was  brought  to  the  supreme  court  of 
torney  general  to  "investigate  acts  of  the  United  States  to  test  the  validity 
the  Federal  government  in  regard  to  of  the  Federal  grazing  laws  in  Colo- 
public  lands  in  the  State  of  Colorado,  rado.     (It  was  decided  May  1,  1911, 
and   in   regard   to   the  waters  of   the  in  favor  of  the  Federal  and   against 
State;  and  to  institute  such  suits  as  he  the  State  power.)      In  April,  1910,  the 
may  deem  necessary  in  the  name  of  the  Colorado      Conservation      Commission 
State  to  determine  whether  or  not  the  passed  a  resolution:   "Resolved,   That 
Federal    government    is    encroaching  as   the  waters   of  this    State   are   the 
upon  or  usurping  the  rights  and  powers  property  of  the  State,  the  power  <le- 
of  the  State  to  the  detriment  of  the  veloped  by  such  water  should  remain 
interests    of  the  people,  or  in  any  way  forever   under   control    of    the    State, 
in  Colorado  violating  the  laws  or  the  and    that   all   legislation    tending    to 


166  (3ded.)    Pt.  II.    CALIFORNIA-  COLO EADO  DOCTEINES.    §§137-139 

(3d  ed.) 

§  137.     Conservation. — The  preparation  of  this  third  edition 

of  this  book  took  place  during  the  progress  and  culmination  of  the 
conservation  movement.  Each  stage  caused  the  writer  to  add  to 
or  change  what  first  had  been  written  in  this  section,  until  it  grew 
quite  lengthy.  When  time  for  final  revision  came,  it  was  necessary 
to  condense  more  and  more,  until  now  nothing  remains.  It  is  so 
controversial  and  contains  so  much  not  concerning  law,  that  a  law- 
book  upon  a  limited  field  had  best  not  enter.  The  section  head- 
ing is  retained,  however,  to  remind  some  reader  who  may  chance 
to  take  up  this  book  in  after  years  that  this  edition  was  written 
in  the  time  of  the  conservation  movement,  the  Pinchot-Ballinger 
controversy,  the  regulation  of  monopoly,  and  Mr.  Roosevelt's  New 
Nationalism. 

It  may  be  noted  that  the  term  "conservation"  is  coming  into 
use  in  judicial  opinions  as  a  substitute  for  "beneficial  use."21 


E.     THE  FUTURE. 
(3d  ed.) 
§  138.     The  future  of  the  Western  law  of  waters  will  depend 

much  upon  the  course  of  the  policy  of  conservation ;  at  present  that 
policy  is  in  the  ascendant,  and  demands  a  great  change  of  the 
existing  law.  It  is  a  great  political  question,  one  for  statesmen 
to  deal  with,  upon  which  no  prophecy  is  here  ventured;  this  book, 
as  a  law-book,  is  confined  to  the  following  observations  upon  other 
lines  relating  to  the  law  of  waters  as,  at  present,  a  branch  of  local 
jurisprudence. 

(3d  ed.) 

§  139.    Transitionary    State    of   the    Law    of    Appropriation 

Within  Itself. — Throughout  the  laAV  of  appropriation  there  is  now 
occurring  a  transition  regarding  the  attributes  of  a  right  of  appro- 
priation within  itself,  irrespective  of  any  question  of  riparian  rights 

abridge  or  restrict  such  control  be  dis-  people  of  the   State    (Stats.   1911,   c. 

couraged."     The  Wyoming  legislature  407).     A    resolution    of    the    Oregon 

in   1911    (46   Cong.   Eec.   3711)    peti-  legislature  in  1911  says  that  Federal 

tioned  Congress  to  grant  the  natural  withdrawals  in  Oregon  are  an  obstacle 

resources  to  the  States.     The  legisla-  to  settlement  and  development  (Stats. 

ture  of  California  in  19il  passed  an  1911,  p.  531). 

act  to  control  power  uses,  which  hither-  21  E.   g.,    Kelly   v.   Hynes     (Mont, 

to  have  been  the  objective  of  Federal  1910),    108    Pac.     785;     Sullivan    v. 

action  (Cal.  Stats.  1911,  c.  406),  and  Jones    (Ariz.),   108   Pac.   477;    Avery 

declared  waters  the  property  of  the  v.  Johnson  (Wash.),  109  Pae,  1028. 


§139  Ch.  6.     HISTORICAL— 1866  TO   THE   PRESENT.     (3d  ed.)   167 

or  of  Federal  rights.  The  transition  is  from  a  possessory  system, 
based  upon  possession  of  the  stream,  to  a  "particular  purpose 
system"  based  upon  the  requirements  of  a  specific  use,  such  as  the 
irrigation  of  a  specific  tract  of  land  or  the  running  of  specific  ma- 
chinery. With  this  change  of  attitude  the  law  of  appropriation  is 
being  modified  throughout,  old  decisions  are  becoming  obsolete,  and 
old  rules  are  giving  place  to  new.  This  we  shall  consider  particu- 
larly as  occasion  arises,  but  we  wish  here  to  bring  these  matters 
together. 

The  law  of  appropriation  arose  as  a  branch  of  the  law  of  pos- 
sessory rights  upon  the  public  domain.22  It  hence  took  on  the 
attributes  of  a  possessory  system  (though  the  right  was  turned  into 
one  of  freehold  by  the  act  of  1866 ).23  The  method  of  making  an 
appropriation  was  deduced  from  the  requisites  of  obtaining  pos- 
session of  the  stream.24  Actual  use  was  not  a  prerequisite  to  the 
creation  of  the  right  and  to  invoking  the  doctrine  of  relation; 
actual  diversion  was  enough,  if  with  a  bona  fide  intent.25  Having 
diverted  the  stream  and  thereby  taken  possession,  capacity  of  the 
ditch,  as  measuring  the  amount  in  possession,  was  the  chief  meas- 
ure of  the  right.1  Injunctions  against  interference  with  the  flow 
to  that  capacity  were  granted,  although  no  interference  with  use 
was  shown.2  The  right  to  the  possession  of  that  flow  was  inde- 
pendent of  the  place  or  character  of  use  made  of  it ; 3  the  flow 
could  be  transferred  and  changed. from  place  to  place  or  from  use 
to  use,  changes  being  immaterial ;  4  alienation  of  right  was  similarly 
unrestricted ; 5  a  parol  sale  was  an  abandonment  simply  because 
it  relinquished  possession,  and  because  of  some  authority  that 
the  statute  of  frauds  did  not  apply  to  possessory  rights  on  the 
public  domain.6  Actual  use  was  represented  only  by  a  bona  fide 
intention;  7  it  did  not  have  to  be  immediately  accomplished  to  cre- 
ate a  right,  but  the  flow  could  be  held  for  future  needs ; 8  nonuse 
was  immaterial  unless  it  was  accompanied  with  an  actual  intent 
to  permanently  abandon  the  possession,9  or  continued  for  a  specific 
statutory  number  of  years.10  This  possessory  attitude  of  the  early 
law,  based  upon  the  idea  that  the  right  consisted  in  possession  and 

22  Sec.  82  et  seq.  •*  Infra,  sees.  496,  497. 

23  Sees.  96  et  seq.,  155,  285.  6  Infra,  sees.  537,  557. 

24  Infra,   sec.   361   et   seq.  6  Infra,  sec.  555. 

25  Infra,  sees.  364,  395.  7  Infra,  sec.  377. 

1  Infra,  sec.  475  et  .seq.  *  Infra,  sec.  483  et  seq. 

2  Infra,   sec.   642.  »  Infra,  sec.  569. 

*  Infra,  see.  281.  W  Infra,  sec.  575  et  seq. 


168  (3ded.)     Ft.  n.     CALIFOENIA- COLORADO  DOCTEINES.  §  HO 

ownership  of  a  specific  flow,  rather  than  a  specific  use,  runs  through 
the  early  cases,  and  in  some  respects  is  being  laid  down  in  recent 
cases. 

But  the  rapid  tendency  of  recent  decision  and  statute  is  to  sub- 
stitute a  ' '  use ' '  system  for  this  ' '  possessory  "one.  The  most  marked 
change  has  been  in  making  beneficial  use  the  sole  measure  of  the 
right,11  and  spreading  the  change  through  the  law  as  a  deduction 
from  that.  Consequently,  present-day  decisions  and  statutes  will 
be  found  opposed  to  almost  all  the  rules  above  mentioned.  Thus, 
the  law  has  forgotten  its  origin  as  a  possessory  right  upon  the 
public  domain,  and  an  entirely  different  explanation  is  usually 
given  of  it  to-day ; 12  actual  application  to  use  rather  than  diver- 
sion has  frequently  come  to  be  a  prerequisite  in  the  very  creation 
of  the  right ; 13  capacity  of  ditch  has  fallen  almost  to  no  measure 
of  right  at  all ; w  injunctions  are  no  longer  granted  to  protect  that 
capacity  when  interference  does  no  damage  to  use ; 15  changes  and 
alienation  are  being  restricted  or  prohibited,  and  the  right  is  being 
made  to  inhere  in  the  initial  place  and  purpose  of  use ; 16  nonuse 
is  more  and  more  coming  to  be  regarded  as  immediately  limiting 
the  right,  without  intent  to  abandon,  or  even  without  waiting  for 
the  lapse  of  any  number  of  years.17 

This  well-defined  change  from  a  possessory  to  a  specific  use 
system  is  now  in  progress,  leaving  inconsistent  decisions  upon  the 
matters  noted.  The  law  of  appropriation  is  now  in  a  state  of 
evolution  within  itself.  In  all  these  matters  the  transition  is  taking 
place  much  more  rapidly  in  the  States  following  the  Colorado  doc- 
trine, where  appropriation  is  the  sole  law,  than  in  California,  where 
appropriation  is  confined  to  the  public  domain  and  is  consequently 
diminishing  in  importance. 

(3d  ed.) 

§  140.     Converging  of  Appropriation  and  Riparian  Rights. — 

Before  the  National  Irrigation  Congress  at  Spokane  in  1909,  Mr. 
Morris  Bien,  Supervising  Engineer  and  at  times  acting  Director  of 
the  United  States  Reclamation  Service,  expressed  the  following 
views  of  the  lines  upon  which  development  of  the  law  may  be  ex- 
pected : 

11  Infra,  sees.  478,  481  et  seq.  l5  Infra,  sec.  642. 

12  Infra,  sec.  167  et  seq.  16  Infra,  sees.  282,  506,  509. 

18  Infra,  sec.  396.  17  Infra,  sees.  480,  481,  et  seq.,  574 

W  Infra,  sec.  479  et  seq.  et  seq.  577. 


§  140  Ch.  6.     HISTORICAL— 1866  TO  THE  PRESENT.     (3d  ed.)   169 

"The  doctrine  of  rights  *by  prior  appropriation  has  been  adopted 
in  nearly  all  the  States  where  irrigation  is  required;  but  this  doc- 
trine as  now  generally  understood  will  necessarily  require  modifi- 
cation. While  a  number  of  the  States  have  adopted  very  satis- 
factory legislation  to  regulate  and  control  the  appropriation,  use 
and  distribution  of  water,  a  great  deal  undoubtedly  remains  to 
be  done  in  order  to  meet  the  many  practical  conditions  which  con- 
cern individual  irrigators  and  the  rights  involved  in  the  large 
irrigation  systems.  We  may  consider  that  most  of  the  States  have 
passed  through  one  stage  of  the  development  of  the  law  of  water- 
rights,  namely,  the  rejection  of  the  rigid  doctrine  resulting  from 
riparian  ownership  and  the  adoption  of  the  doctrine  of  prior  appro- 
priation. The  next  stage  through  which  most  of  the  States,  are 
now  passing  is  that  of  perfecting  the  doctrine  of  appropriation  so 
as  to  meet  the  growing  necessities  of  irrigation  development.  The 
third  stage  is  now  within  sight  in  some  districts,  namely,  the  adop- 
tion of  rules  to  control  the  situation  where  all  the  water  supply 
of  a  drainage  system  has  been  taken  up  and  is  in  actual  use.  The 
adjustment  of  such  rights  to  the  fluctuations  in  water  supply  from 
year  to  year^will  require  careful  consideration  and  must  undoubt- 
edly be  met  in  many  districts  within  a  short  time. 

"In  the  Yale  Law  Journal  for  January,  1909,  is  a  discussion  of 
the  idea  of  reasonable  use,  whether  under  the  doctrine  of  riparian 
rights  or  the  doctrine  of  appropriation.  It  shows  that  the  courts 
have  frequently  called  attention  to  the  fact  that  the  doctrine  of  ap- 
propriation must  be  modified  by  the  idea  of  reasonable  use  which  is 
also  a  fundamental  limitation  of  the  riparian  doctrine.  This  idea 
of  reasonable  use  will  undoubtedly  become  an  important  factor  in 
future  years  when  valuable  interests  depending  upon  the  entire 
water  supply  have  grown  up  within  many  of  the  irrigation  districts, 
and  it  becomes  necessary  to  protect  these  interests  in  cases  of 
temporary  deficiencies  which  sometimes  continue  for  a  number  of 
years  in  succession.  The  legislators  will  soon  be  called  upon  to 
recognize  this  situation,  and  must  provide  for  a  pro  rata  division 
of  the  water  supply  whenever  in  cases  of  shortage  it  becomes  neces- 
sary to  provide  for  all  rights  which  have  been  reduced  to  actual 
beneficial  use.  The  courts  in  a  number  of  cases  have  recognized 
the  right  of  irrigation  companies  to  contract  with  water  users  for 
pro-rating  the  supply  in  case  of  shortage.  The  qualification  of  the 
doctrine  of  prior  appropriation  by  the  idea  of  reasonable  use,  and 


170  (3ded.)     Pt.  II.     CALIFOENIA  -  COLORADO   DOCTRINES.  §141 

the  application  of  the  same  idea  to  the  riparian  doctrine  will  un- 
doubtedly bring  these  opposing  doctrines  much  closer  together  in 
actual  practice,  and  is  likely  in  the  end  to  cause  a  practical  uni- 
formity in  the  governing  principles  of  all  the  irrigation  States."  18 
When  it  is  considered  that  rapid  settlement  on  the  one  hand,  and 
Federal  withdrawal  of  lands  on  the  other  combine  to  prevent  access 
to  streams  by  any  but  the  owners  of  bordering  lands,  the  law  of 
appropriation  must  inevitably  feel  the  effect  of  this  privilege  of 
access  which  riparian  owners  have,  even  in  jurisdictions  denying 
the  common  law  of  waters;  and  this,  together  with  the  increasing 
tendency  upon  the  foregoing  lines  to  hold  appropriators  among 
themselves  to  correlative  instead  of  exclusive  rights,  may  in  time 
bring  the  riparian  and  appropriative  doctrines  much  together  upon 
the  line  of  reasonable  use  (in  a  relative  sense  of  one  toward  the 
other),  between  all  having  natural  access  to  the  stream,  with  not 
much  stress  laid  upon  priority.  In  such  case,  the  only  substantial 
difference  after  full  settlement  would  be  that  under  the  law  of 
riparian  rights  the  water  users  from  a  given  stream  would  all  lie 
within  the  same  valley,  while  under  the  law  of  appropriation  they 
will  be  a  mixture  of  valley  and  nonvalley  owners,  the%latter  having 
acquired  rights  of  way  while  the  land  was  public.  But  priority 
will  have  been  modified  by  equality  upon  correlative  lines. 

(3d  ed.) 

§  141.  Statement  of  the  Doctrine  of  Appropriation. — Before 
closing  this  chapter  it  might  be  well  to  present  the  summary  of 
general  principles  given  by  Judge  Hawley.19  While  not  intended 
as  a  complete  review  of  the  doctrine,  it  sets  forth  fundamental 
principles  that  are  of  frequent  application  to-day : 

"Under  the  principles  of  prior  appropriation,  the  law  is  well 
settled  that  the  right  to  water  flowing  in  the  public  streams  may 
be  acquired  by  an  actual  appropriation  of  the  water  for  a  bene- 
ficial use ;  that,  if  it  is  used  for  irrigation,  the  appropriator  is  only 
entitled  to  the  amount  of  water  that  is  necessary  to  irrigate  his 
land -by  making  a  reasonable  use  of  the  water;  that  the  object  had 
in  view  at  the  time  of  the  appropriation  and  diversion  of  the  water 

18  See   infra,   sec.   310   et  seq.,   for  Min.   Co.  v.   Dangberg    (C.   C.   Nev.), 
the  matter  referred  to.  81   Fed.    73,   and    again   repeated   by 

19  Hewitt   v.    Story,    64    Fed.   510,  the  learned  judge  in  Eodgers  v.  Pitt, 
12   C.   C.  A.   250,   30  L.   R.   A.   265,  129  Fed.  932. 

and  repeated  by.  him  in    Union  ate. 


§141  Ch.  6.     HISTORICAL— 1866  TO  THE  PRESENT.     (3d  cd.)   171 

is  to  be  considered  in  connection  with  the  extent  and  right  of 
appropriation;  that  if  the  capacity  of  the  flume,  ditch,  canal,  or 
other  aqueduct,  by  means  of  which  the  water  is  conducted,  is  of 
greater  capacity  than  is  necessary  to  irrigate  the  lands  of  the 
appropriator,  he  will  be  restricted  to  the  quantity  of  water  needed 
for  the  purposes  of  irrigation,  for  watering  his  stock,  and  for 
domestic  use ;  that  the  same  rule  applies  to  an  appropriation  made 
for  any  other  beneficial  use  or  purpose;  that  no  person  can,  by 
virtue  of  his  appropriation,  acquire  a  right  to  any  more  water 
than  is  necessary  for  the  purpose  of  his  appropriation ;  that,  if  the 
water  is  used  for  the  purpose  of  irrigating  lands  owned  by  the 
appropriator,  the  right  is  not  confined  to  the  amount  of  water 
used  at  the  time  the  appropriation  is  made;  that  the  appropriator 
is  entitled  not  only  to  his  needs  and  necessities  at  that  time,  but 
to  such  other  and  further  amount  of  water,  within  the  capacity  of 
his  ditch,  as  would  be  required  for  the  future  improvement  and 
extended  cultivation  of  his  lands,  if  the  right  is  otherwise  kept 
up ;  that  the  intention  of  the  appropriator,  his  object  and  purpose 
in  making  the  appropriation,  his  acts  and  conduct  in  regard  there- 
to, the  quantity  and  character  of  land  owned  by  him,  his  neces- 
sities, ability,  and  surroundings,  must  be  considered  by  the  courts, 
in  connection  with  the  extent  of  his  actual  appropriation  and  use, 
in  determining  and  defining  his  rights;  that  the  mere  act  of  com- 
mencing the  construction  of  a  ditch  with  the  avowed  intention  of 
appropriating  a  given  quantity  of  water  from  a  stream  gives  no 
right  to  the  water  unless  this  purpose  and  intention  are  carried 
out  by  the  reasonable,  diligent,  and  intelligent  prosecution  of-  the 
work  to  the  final  completion  of  the  ditch,  and  diversion  of  the  water 
to  some  beneficial  use ;  that  the  rights  acquired  by  the  appropriator 
must  be  exercised  with  reference  to  the  -general  condition  of  the 
country  and  the  necessities  of  the  community,  and  measured  in  its 
extent  by  the  actual  needs  of  the  particular  purpose  for  which  the 
appropriation  is  made,  and  not  for  the  purpose  of  obtaining  a 
monopoly  of  the  water,  so  as  to  prevent  its  use  for  a  beneficial  pur- 
pose by  other  persons;  that  the  diversion  of  the  water  ripens  into 
a  valid  appropriation  only  where  it  is  utilized  by  the  appropriator 
for  a  beneficial  use;  that  the  surplus  or  waste  water  of  a  stream 
may  be  appropriated,  subject  to  the  rights  of  prior  appropriators, 
and  such  an  appropriator  is  entitled  to  use  all  such  waters;  that, 
in  controversies  between  prior  and  subsequent  appropriators  of 


172  (3d  ed.)     Pt.  II.     CALIFORNIA  -  COLORADO  DOCTRINES.  §  142 

water,  the  question  generally  is  whether  the  use  and  enjoyment 
of  the  water  for  the  purposes  to  which  the  water  is  applied  by 
the  prior  appropriator  have  been  in  any  manner  impaired  by  the 
acts  of  the  subsequent  appropriator. 

"These  principles  are  of  universal  application  throughout  the 
States  and  Territories  of  the  Pacific  Coast. ' ' 20 

(3d  ed.) 

§  142.     Conclusion. — In  closing  this  chapter  a  word  more  may 

be  said.  The  history  it  traces  is  in  large  part  a  history  of  the 
West,  and  especially  of  the  body  of  Western  law,  not  only  of 
waters  but  of  real  estate  generally.  It  has  been  here  confined  so 
far  as  possible  to  the  water  decisions  and  statutes,  but  a  complete 
history  of  the  Western  law,  and  of  the  law  of  the  public  domain, 
if  some  day  written,  will  take  in  the  mining,  land,  timber  and 
water  law  in  one  general  review.  This  would  require  space  beyond 
the  limits  of  this  book.  Especially  would  it  require  a  much  fuller 
acquaintance  with  the  mining,  land,  and  timber  decisions  than  the 
writer  of  this  book,  possesses.21 

20  Citing  cases.  the  present  writer's  article  in  XLIII 

21  For  a  very  much  condensed  out-       American  Law  Review,  481. 
line  of  the  history  above  traced,  see 

§§  143  to  150.     (Blank  numbers.) 


.§151 


Ch.7.    UNITED   STATES  IN  CALIFORNIA.      (3ded.)  173 


CHAPTER  7. 
UNITED  STATES  OE  STATE— CALIFORNIA  DOCTRINE. 

$  151.  Introductory. 

§  152.  The  Federal  title. 

§  153.  Same. 

§  154.  California  doctrine  based  upon  the  Federal  title. 

§  155.  Appropriation  as  a  grant  from  the  United  States  under  this  system. 

§  156.  Riparian  rights  a  deduction  from  the  Federal  title. 

§  157.  Power  of  Congress  in  the  future  under  this  theory. 

§§  153-166.     (Blank  numbers.) 

(3d  ed.) 

§  151.     The  United  States  has  not  hitherto  exercised  power  over 

the  law  of  innavigable  waters  directly,  and  consequently  the  Land 
Office  ruled,  in  a  case  arising  in  California,  that  it  will  not  pass 
upon  water-right  questions,  but  will  leave  them  to  the  State.1  And 
such  is  the  prevailing  view  of  the  matter  in  daily  practice.2  (Our 
discussion  here  has  nothing  to  do  with  navigable  streams.)3 

In  working  upon  a  theoretical  basis,  however,  the  courts  of  Cali- 
fornia have  strongly  asserted  a  Federal  property  right  in  waters 
upon  public  land. 


t  Silver  etc.  Co.  v.  City  of  Los 
Angeles,  37  Land  Dec.  152.  But  see 
McMillan  Eeservoir  Site,  37  Land 
Dec.  6. 

2  Before  the  Public  Lands  Com- 
mittee of  the  United  States  Senate, 
Feb.  16,  1910,  the  following  remarks, 
among  others,  were  made: 

Senator  Smoot  of  Utah:  "The  gov- 
ernment has  already  admitted  that 
they  have  no  right  whatever  ta  the 
waters  of  our  State,  because  under  the 
Secretary's  [Mr.  Gar  field]  own  ad- 
ministration he  filed  papers  for  sites 
for  the  Indians."  Senator  Newlands 
of  Nevada:  "I  think  that  nobody 
claims  that  the  government  has  any 
ownership  in  the  water  itself." 

This  was  generally  the  position  of 
Mr.  Garfield  also,  as,  for  example: 
Senator  Nelson  of  Minnesota:  "So 
that  the  government  has  nothing  to 
lease  except  the  water-power  site?" 
Mr.  Garfield:  "That  is  all.  It  has 


certain  definite  property,  namely,  the 
land."  But  in  other  parts  of  the 
proceeding  before  the  committee,  Mr. 
Garfield  quoted  from  the  second  edi- 
tion of  this  book,  and  tentatively 
asserted  a  greater  property  right  in 
the  United  States,  as,  for  example: 
Senator  Jones  of  Washington:  "By 
the  term  'public  domain'  you  refer  to 
the  Jand  separate  from  the  water?" 
Mr.  Garfield:  "I  do;  but  in  some  in- 
stances, of  course,  it  applies  to  both, 
depending  on  conditions."  Senator 
Jones:  "But  in  the  States  you  apply 
it  simply  to  the  land?"  Mr.  Garfield: 
"Simply  to  the  land;  but  even  that 
may  sometimes  be  open  to  discussion." 
Senator  Jones :  "I  am  trying  to  get  at 
what  you  understand  by  it."  Mr. 
Garfield:  "That  is  what  I  understand 
by  it." 

3  See  infra,  sec.  898  et  seq.,  as  to 
navigable  waters. 


174  (3d  ed.)     Pt.  II.     CALIFOKNIA  -  COLORADO   DOCTRINES.  §  152 

(3d  ed.) 

§  152.  The  Federal  Title.— Under  the  doctrine  of  the  Cali- 
fornia courts,  in  speaking  of  the  ultimate  source  of  property  in 
appropriative  water-rights,  by  the  term  "governmental  proprietor," 
is  meant  the  owner  of  the  public  lands,  to  which  the  doctrine  of 
appropriation  alone  applies  in  these  jurisdictions,  and  this  is  usually 
the  United  States,  as  the  public  lands  were,  and  still  are,  chiefly 
Federal  lands.  But  it  may  also  signify  the  State  where  (as  in 
comparatively  few  cases)  title  to  the  public  land  is  in  the  State 
instead  of  in  the  United  States.  The  theory  is  laid  down  in  the 
courts  following  the  California  doctrine  that  (although  the  State 
as  sovereign  has  the  regulative  control  over  distribution  of  water 
to  public  uses),  j^he  appropriator  of  water  on  public  land  usually 
receives  his  property  title  or  "water-right"  from  the  United 
States  as  landowner  of  the  public  lands.  The  positions  of  the  two 
governments  as  landowner"  and  as  lawmaker  are  kept  distinct. 

By  the  treaty  of  Guadalupe  Hidalgo,4  the  United  States,  at  the 
time  the  miners  arrived  in  California,  had  succeeded  to  the  Mexican 
title,  and  was  the  sole  owner  of  the  lands  through  which  the  streams 
wholly  flowed,  excepting  only  the  few  cases  where  Mexico  had  pre- 
viously made  grants  of  ranches  to  private  persons,  which  grants 
the  United  States  respected.  These  lands  were  held  by  the  United 
States,  and  since  the  admission  of  the  State  into  the  Union  are 
now  held  (where  not  reserved  or  purchased  for  fortifications,  etc.), 
as  are  held  the  lands  of  private  persons,  with  the  exception  that 
they  are  not  taxable.5  An  incident  to  this  sole  ownership  of  the 
land  was,  it  is  said,  the  right  to  the  waters  flowing  through  it. 
This  right,  it  is  said,  was  the  same  as  that  acquired  by  the  United 
States  in  its  acquisition  of  any  land,  whether  in  California  or 
Missouri — a  complete  and  unlimited  proprietorship.  It  is  laid 
down  in  California:  "Since,  if  not  before,  the  admission  of  Cali- 
fornia into  the  Union,  the  United  States  has  been  the  owner  of 
all  innavigable  streams  on  the  public  lands  of  the  United  States, 
within  our  borders,  and  of  their  banks  and  beds."6 

4  9  Stats,  at  Large,  928.  their  primary  disposal,  and  they  were 

5  After  the  admission  of  California,  not  subject  to  taxation.     In  all  other 
it  is  said:   "Thenceforth  the  only  in-  respects  the  United  States  stood  upon 
terest    of    the    United    States    in    the  the  same  footing  as  private  owners  of 
public  lands  was  that  of  a  proprietor,  land."     Woodruff  v.  North  Bloomfield 
like  that  of  any  other  proprietor,  ex-  etc.  Co.,  18  Fed.  Cas.  772,  9  Saw.  441. 
cept  that  the  State,  under  the  express  6  Lux   v.   Haggin,   69   Cal.   255,   at 
terms   upon    which    it   was    admitted,  336,  10  Pac.  674.     The  United  States 
could  pass  no  laws  to  interfere  with  owns,  as   proprietor,   hot    springs   on 


§  153  Ch.  7.     UNITED   STATES   IN   CALIFOKNIA.      (3d  ed.)   175 

The  Federal  title  includes  waters  in  California  partly  because 
such  was  the  common  law,  which  was  in  force  in  the  State  from 
its  foundation,  the  unlimited  Federal  title  being,  the  court  later 
held  in  Lux  v.  Haggin,  assimilated  to  the  right  of  a  sole  riparian 
proprietor  at  common  law.7  But  the  manner  in  which  an  unlim- 
ited proprietorship  in  the  waters  came  to  the  United  States  was 
never,  in  California,  an  open  question.  It  was  fixed  on  political 
grounds  in  pioneer  days,  and  re-enforced  under  the  influence  of 
Federal  anxiety  at  the  time  of  the  opening  of  the  Civil  War,  by 
Judge  Field  (in  its  general  lines),  in  1861  in  Moore  v.  Smaw.8 
While  specifically  dealing  only  with  precious  metals,  he  did,  in- 
cidentally, mention  water  also ;  but  irrespective  of  that  fact,  it 
was  a  declaration  of  principle.  The  point  is  that  in  California  the 
acceptance  of  the  Federal  title  came  first,  and  the  assimilation 
thereof  to  the  common  law  in  Lux  v.  Haggin  merely  followed  to 
make  the  local  law  conform  to  the  Federal  title. 

(3d  ed.) 

§  153.  Same. — Consequently,  the  Federal  government  may 
make  rules  for  the  disposal  of  the  waters  on  its  lands,  it  is  now 
declared,  under  the  California  theory,  and  no  property  rights  there- 
in can,  in  true  law,  it  is  said,  be  acquired  without  authority  from 
Congress.  Speaking  generally,  title  to  such  waters  .is  said  to  be 
' '  utterly  beyond  the  power  or  control  of  State  legislatures, ' ' 9  ex- 
cept as  sanctioned  by  Congress  in  the  act  of  1866  and  other  acts; 
and  Congress  is  said  to  be  the  "supreme  authority"  over  its  dis- 
posal.10 Being  Federal  property,  the  right  of  disposal  (as  distin- 
guished from  the  political  regulative  power  over  the  conduct  of 
citizens  after  it  is  disposed  of)  is  rested  upon  the  disposal  clause 

public  land  in  Arkansas.  Hot  Spring  to  the  water.  Third,  because  if,  by 
Oases,  92  U.  S.  698,  23  L.  Ed.  690;  Mexican  law,  there  was  any  right  in 
Van  Lear  v.  Eisele,  126  Fed.  823.  the  State  as  proprietor  of  waters,  the 
7  Lux  v.  Haggin  reached  this  con-  adoption  of  the  common  law  by  the 
elusion:  First,  because  both  were  State  was  a  surrender  to  riparian  pro- 
unlimited,  and  there  was  hence  no  sub-  prietors  (to  the  United  States,  as  to 
stantial  difference.  Second,  because  the  vast  preponderance  of  the  lands) 
the  right  of  a  sole  proprietor  under  of  those  rights  because  inconsistent 
Mexican  law  (the  only  other  possible  with  the  common  law. 
law)  would  be  substantially  the  same  8  17  Cal.  199,  79  Am.  Dec.  123,  12 
as  at  common  law,  supposing  the  title  Morr.  Min.  Eep.  418. 
of  the  United  States  to  depend  on  9  Kendall  v.  Joyce,  48  Wash.  489, 
Mexican  law;  for  under  Mexican  law  93  Pac.  1091. 

no    one    without    a    right    of    access  10  Cottonwood     D.     Co.     v.     Thorn 

through    ownership    of    riparian    land  (1909),  39  Mont.  115,   101  Pae.  825, 

(with  a  few  exceptions)   had  a  right  104  Pae.  281. 


176  (3ded.)     Pt.  II.     CALIFORNIA  -  COLORADO  DOCTRINES.  §153 

of  the  constitution  of  the  United  States  as  follows :  ' '  The  Congress 
shall  have  Power  to  dispose  of  and  make  all  needful  Rules  and 
Regulations  respecting  the  Territory  or  other  Property  belonging 
to  the  United  States;  and  nothing  in  this  Constitution  shall  be  so 
construed  as  to  Prejudice  any  Claims  of  the  United  States,  or  of 
any  particular  State. ' '  n 

So,  likewise,  it  is  said:12  "In  the  Eastern  part  of  Montana  the 
United  States  acquired  its  title  to  lands  by  virtue  of  what  is  called 
the  'Louisiana  Purchase.'  There  cannot  be  one  rule  as  to  the  right 
to  the  flow  of  water  over  its  lands  in  Montana  and  another  rule  as  to 
its  lands  in  Iowa  and  Missouri.  In  these  last-named  States,  there 
can  be  no  doubt  of  the  rule  that  the  national  government  would  be 
entitled  to  the  water  which  is  an  incident  to  its  land.  As  the 
United  States  then  owns  the  waters  which  are  an  incident  to  its 
lands,  it  can  dispose  of  them  separate  from  its  lands  if  it  chooses." 
Another  case : 13  ' '  The  water  in  an  innavigable  stream  flowing  over 
the  public  domain  is  a  part  thereof,  and  the  national  government 
can  sell  or  grant  the  same,  or  the  use  thereof,  separate  from  the 
rest  of  the  estate,  under  such  circumstances  as  may  seem  to  it 
proper."  Quite  recently  the  United  States  circuit  court  of  ap- 
peals, quoting  the  supreme  court  of  the  United  States,  said: 
"That  the  United  States  may,  where  the  circumstances  and  condi- 
tions require  it,  reserve  the  waters  of  a  river  flowing  through  its 
public  lands  for  a  particular  beneficial  purpose  was  held  by  this 
court  in  Winters  v.  United  States.14  This  decision  was  approved 
by  the  supreme  court  of  the  United  States  in  Winters  v.  United 
States,15  where  the  court  said:  'The  power  of  the  government  to 
reserve  the  waters  and  exempt  them  from  appropriation  under  the 
State  laws  is  not  denied,  and  could  not  be. ' 16  To  the  same  effect 
was  the  decision  of  this  court  in  Conrad  Inv.  Co.  v.  United  States.17 
The  authority  of  the  United  States  to  reserve  the  waters  of  its 
streams  in  the  arid  region  for  a  beneficial  purpose  has  been  recently 

n  Article  4,  see.  3.  14  143  Fed.  740,  74  C.  C.  A.  666, 

12  Cruse  v.  McCauley,  96  Fed.  369.  and  148  Fed.  684,  78  C.  C.  A.  546. 
So    Mr.    Roosevelt,    in   an   address   in  15  207  U.  S.  564,  577,  28  Sup.  Ct. 
March,  1911,  before  the  Commonwealth  Rep.  207,  52  L.  Ed.  340. 

Club  in  San  Francisco,  took  the  posi-  16  Citing     United     States     v.     Rio 

tion  that  the  United  States  could  do  Grande  Ditch  etc.  Co.,  174  U.  S.  690, 

with   the   waters   flowing   over   public  702,  19  Sup.  Ct.  Rep.  770,  43  L.  Ed. 

lands  whatever  it  could   do  with  the  1136;    United   States  v.   Winans,   198 

lands  themselves.  U.   S.  371,   25   Sup.  Ct.  Rep.  662,  49 

13  Howell  v.  Johnson,  89  Fed.  556  L.  Ed.  1089. 

(C.  C.  Mont.),  Knowles,  J.  "  161  Fed.  829,  831. 


§§  154, 155        Ch.  7.     UNITED    STATES    IN    CALIFORNIA.     (3d  ed.)  177 

extended  to  the  settlement  of  a  long-standing  controversy  between 
the  United  States  and  Mexico  respecting  the  use  of  the  waters  of 
the  Rio  Grande,"  etc.18 

Incidentally,  the  unlimited  right  to  the  waters  being  in  the 
United  States  when  the  stream  is  wholly  on  public  land,  the  fact 
that  it  actually  uses  them  for  a  reservation  adds  nothing  new 
to  the  character  of  its  right,  which  was  complete  whether  actually 
using  the  water  or  not,  under  this  doctrine.19 

(3d  ed.) 

§  154.    California  Doctrine  Based  upon  the  Federal  Title. — 

With  this  conception  of  the  underlying  Federal  title  to  waters  on 
the  public  domain,  the  pioneer  California  court  had  no  choice  but 
to  find  some  way  under  the  Federal  title  (and  the  consequent  asser- 
tion that  the  pioneers  were  trespassers)  to  nevertheless  give  some 
color  of  right  to  the  pioneers.  Had  Congress  declared  itself,  there 
would  have  been  an  end  of  the  matter,  but  as  is  well  known  as  a 
matter  of  history,  Congress  regarded  California  as  almost  an  un- 
known region  and  for  a  long  time  did  nothing  at  all,  and  the 
miners  and  "forty-niners"  drifted  along  their  own  course  re- 
specting this  public  domain  without  hearing  from  Congress  one  way 
or  the  other.  They  appropriated  to  themselves  the  public  land,  its 
mines,  its  waters,  and  other  incidents.  This  custom  of  appropri- 
ating Federal  property  had  to  be  upheld  by  the  State  courts  be- 
cause the  settlement  of  the  whole  State  depended  upon  it,  and  it 
settled  upon  the  theory  of  grant  to  the  appropriator  from  the 
United  States,  deraigning  the  appropriator 's  title  in  the  same  way 
as  mining  titles,  and  upon  an  equal  footing  with  any  later  patentee. 

(3d  ed.) 

§  155.  Appropriation  as  a  Grant  from  the  United  States  Under 
This  System. — Under  this  view  it  is  generally  considered  in  the 
decisions  that  an  appropriation  constitutes  a  grant  from  the  United 
States  to  the  appropriator  of  waters  on  the  public  lands ;  originally 
implied  from  the  silent  acquiescence  of  the  United  States,20  now 
resting  upon  the  act  of  1866.21 

18  Burley  v.  United  States    (C.  C.      Fed.  126.     See  infra,  sec.  207,  regard- 
A.,  Idaho,  1910),  179  Fed.  1.  ing  waters  on  reservations. 

19  Story    v.    Wolverton,    31    Mont.  20  See  supra,  sec.  89. 

346,    78   Pac.   589;    United   States   v.          21  Sees.   2339,   2340,   Eevised   Stat- 
Conrad    Investment    Co.     (Or.),    156      utes  of  the  United  States.     See  Conger 
Water  Rights — 12 


178  (3d  ed.)     Pt.  II.     CALIFORNIA  -  COLORADO  DOCTRINES.  §  155 

The  following  will  serve  as  examples  of  the  way  this  theory  is 
summarized  by  the  courts:  In  Lux  v.  Haggin,  the  court  says:22 
"Recognizing  the  United  States  as  the  owner  of  the  lands  and 
waters,  and  as  therefore  authorized  to  permit  the  occupation  or 
diversion  of  the  waters  as  distinct  from  the  lands,  the  State  courts 
have  treated  the  prior  appropriator  of  water  on  the  public  lands 
of  the  United  States  as  having  a  better  right  than  a  subsequent 
appropriator,  on  the  theory  that  the  appropriation  was  allowed  or 
licensed  by  the  United  States.  It  has  never  been  held  that  the 
right  to  appropriate  waters  on  the  public  lands  of  the  United 
States  was  derived  directly  from  the  State  of  California  as  the 
owner  of  innavigable  streams  and  their  beds.  And  since  the  act  of 
Congress  granting  or  recognizing  a  property  in  the  waters  actually 
diverted  and  usefully  applied  on  the  public  lands  of  the  United 
States,  such  rights  have  always  been  claimed  to  be  deraigned  by 
private  persons  under  the  act  of  Congress,  from  the  recognition 
accorded  by  the  act,  or  from  the  acquiescence  of  the  general  gov- 
ernment in  previous  appropriations  made  with  its  presumed  sanc- 
tion and  approval."  In  a  Nebraska  case:  "Practically  all  the 
lands  in  the  semi-arid  portions  of  the  State  at  the  time  belonged 
to  the  government.  It  was  the  riparian  proprietor,  and  authorized 
the  appropriation  and  diversion  of  the  water  for  agricultural,  min- 
ing and  manufacturing  purposes."23 

The  title  of  the  act  of  1866  itself  enunciates  the  theory  of  a 
grant  from  the  United  States:  "An  act  granting  the  right  of  way 
to  ditch  and  canal  owners  over  the  public  lands  and  for  other 
purposes. "  24  In  one  California  case,25  for  example,  the  court 
says:  "We  hold  the  absolute  property  in  such  cases  to  pass  by 
appropriation  as  it  would  by  grant."  In  another  case:1  "An 
appropriator  of  water  under  these  circumstances,  and  while  the 
land  which  he  subjects  to  his  necessary  uses  continues  to  be  a  part 
of  the  public  domain,  is  a  licensee  of  the  general  government;  but 

v.  Weaver,  6  Cal.  548,  at  558,  65  Am.  23  Crawford  v.  Hathaway,  67  Neb. 

Dec.  528,  1  Morr.  Min.  Rep.  594;  Kick!  325,  108  Am.  St.  Rep.  647,  93  N.  W. 

v.   Laird,    15   Cal.    161,   76    Am.   Dec.  781,  60  L.  R.  A.  889.     Compare  Ras- 

472,  4  Morr.  Min.  Rep.  571;   Ortman  mussen  v.  Blast,  85  Neb.  198,  133  Am. 

v.   Dixon,   13   Cal.   33;    Osgood   v.   El  St.  Rep.  650,  122  N.  W.  862. 
Dorado  Water  Co.,  56  Cal.  571,  5  Morr.  24  Approved    July    26,    1866,    Rev. 

Min.  Rep.  37;  Lux  v.  Haggin,  69  Cal.  Stats.,  sec.  2339;  14  Stat.  253,  c.  263. 
255,  10  Pac.  674;  Smith  v.  Hawkins,  25  Ortman  v.  Dixon,  cited  supra. 

110  Cal.  122,  42  Pac.  453;  and  manj  1  Smith  v.  Hawkins,  110  Cal.   122, 

other  cases.  42  Pac.  453. 
22  69  Cal.  255,  at  339,  10  Pae.  674. 


§155  Ch.  7.     UNITED   STATES    IN   CALIFORNIA.      (3ded.)   179 

when  such  part  of  the  public  domain  passes  into  private  ownership, 
it  is  burdened  by  the  easement  granted  by  the  United  States  to  the 
appropriator,  who  holds  his  rights  against  this  land  under  an  ex- 
press grant."  In  a  Montana  case2  the  court  say's:  "Under  the 
law  of  Congress  a  grant  of  the  kind  of  property  in  question  is 
presumed  by  the  act  of  appropriation."  In  another:3  "A  water- 
right  can,  therefore,  be  acquired  only  by  the  grant,  express  or  im- 
plied, of  the  owner  of  the  land  and  water.  The  right  acquired  by 
appropriation  and  user  of  the  water  on  the  public  domain  is  founded 
in  grant  from  the  United  States  government  as  the  owner  of  the 
land  and  water.  Such  grant  has  been  made  by  Congress."  4  Some 
other  authorities  are  given  in  the  note.5 

As  the  law  developed  since  1866,  actual  documentary  patents  were 
issued  by  the  United  States  to  lands  and  to  mines.  This  has 
never  been  done  regarding  water,6  but  the  theory  is  as  though  it 
were.  The  appropriator 's  grant  is  of  equal  force  with  a  later 
patent  to  a  riparian  owner,  and  is  hence  equivalent  to  and  of  equal 
dignity  with  a  patent  from  the  United  States ; 7  for,  though  no 
actual  patent  issues,  yet  a  grant  in  an  act  of  Congress  is  the 
highest  possible  muniment  of  title.  The  supreme  court  of  the 

2  Barkley  v.  Tieleke,  2  Mont.  59,  4  Judge    Lindley     says:     "A    mining 
Morr.  Min.  Rep.  666.  claim  perfected  since  the  act  of  1866 

3  Smith  v.  Denniff,  24  Mont.  20,  81  has   the   effect   of   a   grant   from   the 
Am.  St.  Rep.  408,  60  Pac.  398,  50  L.  United  States  of  the  present  and  ex- 
R.  A.  741.  elusive  possession  of  the  lands  located. 

*  Citing  Wood  v.  Etiwanda  Water  The  owner  of  such  a  location  is  en- 
Co.,  12-2  Gal.  152,  54  Pac.  726;  Welch  titled  to  the  exclusive  possession  and 
v.  Garrett,  5  Idaho,  639,  51  Pac.  405,  enjoyment,  against  every  one,  includ- 
19  Morr.  Min.  Rep.  193.  ing  the  United  States  itself."  Lind- 

5  "This  act   [the  act  of  1866]   but  ley  on  Mines,  sec.  539. 

legalized  what  were  before  trespasses  Speaking   of   the  water  section   of 

on  the  public  domain,  and  made  law-  the     act     of     1866,     a     contemporary 

ful,  as  between  the  occupants  and  the  wrjter    said:    "The   language   of   this 

United  .States,  that  which  before  was  act  makes  tne  right  a  confirmation  in 

unlawful.       t   only   provided    for   the  pracsenti   as   to   the   claims   included, 

sale    of    quartz    mines    and    granting  without  any  preliminary  proceeding  to 

water-rights  on  the  public  lands   etc."  obta}n  a  title   as  in  the  case  of  a  min. 

Woodruff    v.     North    Bloomfield,     18  ing  claim>     A  grant  conferred  by  act 

Fed.  742,  9  Saw.  441.     The  act  oper-  of  Congress  is  the  highest  source  of 

ated  as  a  grant.     Union  Mm.  Co.  v.  title   known    to    our   j|ws  »     Ya]e   on 

*  ems    Fed.  Cas.  No.  14,3/2    2  Saw.  Mining  Claims  and  Water  Rights,  p. 

176,  8  Morr.  Mm.  Rep.  90;  Farley  v.  339 

Spring  Valley  Co.,  58  Gal.  142,     (But  gee,  also,  infra,  sec.  285,  a  freehold 

see  Rasmussen  v.  Blust   (Neb.,  1909),  estate 
85  Neb.  198,  133  Am.  St.  Rep.  650.  122 

N.  W.  862,  an  opinion  written  without  Some  approach  to  it  is  provided 

examination  of  the  history  of  the  sub-  regarding  rights  of  way  and  reservoir 

ject;   for  it  is  more  a  matter  of  his-  sites.     A.    C.,    March    31,    1891.     See 

tory  than  one  to  be  reasoned  out  fresh  infra,   sec.  434. 

to-day.)  7  Supra,  sees.  96-98. 


180  (3ded.)     Pt.  II.     CALIFORNIA -COLORADO  DOCTRINES.  §156 

United  States  said  the  act  of  1866  is  an  "unequivocal  grant,"8 
and  the  supreme  court  of  Montana  recently  said  of  it  that  "Such 
acknowledgment  from,  so  supreme  authority  amounts  to  a  grant."9 
The  grant  is  in  the  act  itself,  the  highest  kind  of  patent. 

Further,  the  United  States,  as  grantor,  had  power  to  impose  con- 
ditions on  the  grant  to  the  appropriator,  and  did  so  by  recog- 
nizing the  conditions  imposed  by  the  early  customs  of  miners  in 
California,  especially  the  condition  of  beneficial  use. 

An  appropriation  of  water  is,  then,  under  the  California  doc- 
trine, a  conditional  grant  on  public  land  from  the  United  States 
as  grantor  to  the  appropriator  as  grantee,  and  hence,  because 
founded  in  grant,  the  limits  of  an  appropriation  must  lie  within 
the  limits,  whatever  they  may  be,  beyond  which  the  United  States 
had  nothing  to  dispose  of,  never  having  owned,  or  having  parted 
with.  The  system  of  appropriation  could  have  effect  only  where 
the  United  States  as  landowner  had  power  to  permit  it  by  grant. 
This  must  be  insisted  on  because  it  is  a  fundamental  principle  to 
be  carried  through  the  subject.  The  conclusion  to  be  drawn  from 
this  matter  is  that  under  the  California  doctrine  an  appropriator 
receives  his  rights  from  the  owner  of  the  public  lands  as  land- 
owner, not  as  lawmaker,  and  that  this  is  usually  the  United  States 
and  not  the  State.  The  legislative  power  of  the  State  extends  to 
governing  procedure  in  its  courts,10  and  to  matters  within  the  police 
power  such  as  the  regulation  of  distribution  to  public  uses,  but  is 
subject  to  the  constitutional  limitations  against  infringing  on  the 
primary  disposal  power  of  Congress,  or  interfering  with  the  guar- 
anty of  vested  rights.11 

(3d  ed.) 

§  156.  Riparian  Rights  a  Deduction  from  the  Federal  Title. — 
It  is  likewise  as  a  deduction  from  the  proprietary  status  of  the 
United  States  that  the  California  doctrine  upholds  the  existence 
of  riparian  rights  between  private  individuals.  Accepting  the 
Federal  title  to  the  waters  while  the  land  is  public,  then,  when  the 

8  Broder  v.  W.  Co.,  101  U.  S.  274.  taxation,  or  other  .than  given   to  the 

9  Cottonwood     D.     Co.     v.      Thorn  United   States   expressly   by   the   con- 
(1909),  39  Mont.  115,  101  Pac.  825,  stitution.     "The  powers  not  delegated 
104  Pac.  281.  to  the  United  States  by  the  Constitu- 

10  Lux  v.  Haggin,   69  Cal.  255,  at  tion  ....  are  reserved  to  the  States 
377,  10  Pac.  674.  respectively,  or  to  the  people."     Amdt. 

11  The  exception  of  matters  within  X.     See  infra,  sees.  1262  et  seq.,  1323 
the  police  power  is  an  exception  of  all  et  seq.,  public  service. 

political  sovereign  power  other  than 


§156  Ch.7.     UNITED   STATES   IN   CALIFORNIA.      (3d  ed.)   181 

riparian  land  passed  into  private  title  before  a  diversion,  all  there- 
tofore unappropriated  water  went  with  the  Federal  patent,  equally 
as  it  was  part  of  the  government  title  before  the  patent.  No  other 
rule  could  stand  with  the  opinion  of  Judge  Field  in  Moore  v. 
Smaw,12  where,  in  1861,  long  before  Lux  v.  Haggin,  he  laid  down 
the  law  (which,  as  to  mines,  excepting  known  lodes  or  existing 
valid  locations,  has  since  then  been  everywhere  fundamental)  : 
"Such  being  the  case,  the  question  arises  as  to  what  passed  by  the 
patents  to  the  Fernandez  and  to  Fremont,  and  to  this  question  there 
can  be  but  one  answer:  all  the  interest  of  the  United  States,  what- 
ever it  may  have  been,  in  everything  connected  with  the  soil,  in 
everything  forming  any  portion  of  its  bed  or  fixed  to  its  surface, 
in  everything  which  is  embraced  within  the  signification  of  the 
term  land;  and  that  term,  says  Blackstone,  'includes  not  only  the 
face  of  the  earth,  but  everything  under  it  or  over  it.  And,  there- 
fore,' he  continues,  'if  a  man  grants  all  his  lands,  he  grants  thereby 
all  his  mines  of  metal,  and  other  fossils,  his  woods,  his  waters,  and 
his  houses,  as  well  as  his  fields  and  meadows. ' 13  Such  is  the  view 
universally  entertained  by  the  legal  profession  as  to  the  effect  of 
a  patent  from  the  general  government."  14 

While  the  California  doctrine  is  usually  considered  to  have  its 
chief  exposition  in  the  unfortunately  lengthy  opinion  in  Lux  v. 
Haggin,  it  is  pretty  much  contained  in  this  terse  passage  by  Judge 
Field  in  Moore  v.  Smaw.  As  subsequently  laid  down  in  Lux  v. 
Haggin,  the  law  is  that  if  waters  are  actually  appropriated  prio» 
to  a  Federal  grant  of  land,  they  are  granted  to  the  appropriator 
by  the  United  States,  and  are  reserved  by  the  United  States  out 
of  the  land  grant,  but  otherwise  the  right  to  the  waters  passes  as 
riparian  right  with  the  land  grant.  "A  grant  of  public  land  of 
the  United  States  carries  with  it  the  common-law  rights  to  an 
innavigable  stream  thereon,  unless  the  waters  are  expressly  or 
impliedly  reserved  by  the  terms  of  the  patent,  or  of  the  statute 
granting  the  land,  or  unless  they  are  reserved  by  the  congressional 
legislation  authorizing  the  patent  or  other  muniment  of  title. ' ' 13 

12  17  Cal.  200,  at  224,  79  Am.  Dec.  material  in   this   connection.     Strictly 

123,  12  Morr.  Min.  Rep.  418.  speaking,  it  is  the  right  of  flow  and 

is  Citing  Book  II,  19.  use,  and  not  the  water  itself,  which 

!•*  The  distinction  between  the  passes  by  the  patent,  but  that  is  im- 

corpus  of  water,  and  its  right  of  flow  material  here. 

and    use    or   usufruct,    elsewhere   eon-  i»  Lux  v.  Haggin,  69  Cal.  255,  10 

sidered  (supra,  Part  I),  is  wholly  im-  Pac.  674. 


182  (3ded.)     Pt.  H.     CALIFORNIA  -  COLORADO  DOCTRINES.  §156 

In  a  case  showing  much  study  of  the  question  it  is  said,  com- 
menting on  the  law  of  Montana:  "In  that  State  the  doctrine  more 
generally  known,  perhaps,  as  the  'California  doctrine'  prevails. 
Stated  briefly,  that  doctrine  is  that  while  a  stream  is  situated  on 
the  public  lands  of  the  United  States  a  person  may,  under  the 
customs  and  laws  of  the  State  and  the  legislation  of  Congress, 
acquire  by  prior  appropriation  the  right  to  use  the  waters  thereof 
for  mining,  agricultural,  and  other  beneficial  purposes,  and  to  con- 
struct and  maintain  ditches  and  reservoirs  over  and  upon  the 
public  land;  such  right  being  good  against  all  other  private  per- 
sons, and  by  statute  good  as  against  the  United  States  and  its 
subsequent  grantees ;  but  that,  when  a  grantee  of  the  United  States 
obtains  title  to  a  tract  of  the  public  land  bordering  on  a  stream, 
the  waters  of  which  have  not  been  hitherto  appropriated,  his  patent 
is  not  subject  to  any  possible  appropriation  subsequently  made  by 
another  party  without  his  consent. ' ' 16 

The  term  ' '  appropriation  of  water ' '  thus  means,  in  California  and 
the  States  following  in  historical  doctrine,  such  a  title  (and  only 
such)  as,  because  acquired  as  a  grant  from  the  United  States  on 
public  land  under  the  Federal  policy  of  free  rights  in  the  public 
domain,  is  valid  against  a  riparian  owner  where  (and  only  where) 
the  riparian  patent  issued  subsequent  to  the  appropriation.  If  the 
land  patent  issued  first,  its  riparian  rights  prevail  over  the  appro- 
priation. (To  determine  which  was  acquired  first,  the  appropria- 
tion relates  back  to  the  beginning  of  work,16*  while  the  patent  re- 
lates back  to  the  date  of  settlement.161*)  The  waters  pass  with 
the  land  less  because  such  is  the  common  law,  than  because  they 
were  assumed  to  belong  to  the  United  States  before  the  patent,  and 
the  patent  carried  everything  that  had  belonged  to  the  United 
States.  This  feature  of  the  California  doctrine  is  variously  ex- 
pressed as  being  that  the  doctrine  of  appropriation  of  water  applies 
only  to  waters  on  public  land,  or  that  appropriation  is  not  valid 
against  prior  settlers  or  landowners,  or  that  no  appropriation  can 
be  made  of  waters  on  private  land;  or  that  nonriparian  owners 
(aside  from  contract,  prescription  or  condemnation)  have  no  rights 
in  streams  except  such  as  were  acquired  while  the  riparian  lands 
were  public — all  of  which  forms  express  the  same  idea. 

l«  Willey  v.  Decker,   11  Wyo.   496,  I6a  Infra,  sec.  393  et  seq. 

100  Am.  St.  Rep.  939,  73  Pae.  210.  I6b  Infra,  see.  261  et  seq. 


§  157  Ch.  7.     UNITED   STATES   IN   CALIFORNIA.      (3d  ed.)   183 

(3d  ed.) 

§  157.  The  Power  of  Congress  in  the  Future. — Under  this 
historical  theory  there  would  seem  to  be  a  field  for  Federal  legis- 
lation as  to  the  yet  undisposed  of  water  upon  public  lands,  pro- 
vided it  repeals  or  modifies  the  guaranty  of  appropriation  of  such 
waters  (under  local  rules)  contained  in  the  act  of  1866. 

It  is  true  that  for  numerous  generations  the  United  States 
adopted  the  policy  of  holding  the  public  lands  and  their  incidents 
as  a  trustee  only,  the  trusteeship  being  to  pass  the  lands  and 
their  incidents  as  rapidly  as  it  could  into  private  use  and  owner- 
ship, and  allow  the  new  States  and  their  citizens  to  acquire  them 
for  their  growth  and  prosperity.  But,  as  the  historical  chapters 
have  shown,  that  was  a  matter  of  tacit  policy  or  statesmanship  and 
not  of  actual  law.  When,  for  the  first  time,  Congress,  by  the  act 
of  1866,  authorized  State  legislation  for  the  disposal  of  waters 
on  public  lands,  such  legislation  was  considered  subordinate  to 
the  will  of  Congress,  and  Congress  may,  under  this  theory,  it  would 
seem  (subject  to  protection  of  rights  already  vested  under  the 
State  legislation  wrhich  Congress  authorized),  repeal  this  permis- 
sion or  enact  rules  of  disposal  of  its  own;  just  as  in  the  min- 
ing law  State  legislation  over  mining  titles  is  supplementary 
and  subordinate  to  any  action  taken  by  Congress ; 17  and  just,  as 
with  regard  to  the  acquisition  of  rights  of  way  over  public  lands ; 18 
and  as  is  acknowledged  respecting  title  to  the  public  lands  gen- 
erally.19 

It  would  be  within  the  power  of  Congress  to  abrogate  riparian 
rights,  under  this  theory,  as  to  the  yet  undisposed,  of  waters  on 

17  "In    the    act    of    1872    Congress  which  it  would   have  within  a   Terri- 
authorized  the  various  States  in  which  tory,  we  do   not  think  the  admission 
was  situated  public  mineral  domain  of  of  a  Territory  as  a  State  deprives  it 
the  United   States  to   legislate  in  re-  of   the   power   of   legislating    for   the 
gard   to   mining.     Such   legislation   is  protection  of  the  public  lands,  though 
necessarily   only   supplemental   to   the  it  may  thereby  involve  the  exercise  of 
Federal  legislation,"  etc.     Costigan  on  what  is  ordinarily  known  as  the  police 
Mining  Law,  p.  21.  power,   so   long  as  such   power  is   di- 

18  Infra,  sec.  430  et  seq.  rected    solely    to    its    own    protection. 

19  "The  general  government  doubt-  A  different  rule  would  place  the  pub- 
less  has  a  power  over  its  own  property  lie     domain     of     the  .  United     States 
analogous  to  the  police  power  of  the  completely  at  the  mercy  of  State  legis- 
several  States,  and  the  extent  to  which  lation."     Camfield    v.    United    States 
it    may    go    in    the    exercise    of    such  (1896),  167  IT.  S.  518,  at  525,  526,  17 
power  is  measured  by  the  exigencies  Sup.  Ct.  Rep.  864,  42  L.  Ed.  260.     See, 

of    the    particular    case While  also,  Light  v.  United  States   (May  1, 

we  do  not  undertake  to  say  that  Con-  J911),  —  U.  S.  — ,   and  Grimaud  v. 

gress  has  the  unlimited  power  to  legis-  United    States     (May    1,    1911),    — 

late  against  nuisances  within  a  State,  U.  S.  — . 


184  (3d  ed.)     Pt.  II.     CALIFORNIA-  COLORADO  DOCTRINES.  §  157 

public  lands,  by  providing  that  land  patents  shall  not  hereafter 
carry  any  water-rights.  In  California  20  the  legislature  at  one  time 
passed  a  joint  resolution  calling  upon  Congress,  as  to  all  waters  on 
the  public  domain,  to  reserve  all  riparian  rights  out  of  land  patents, 
and  "that  the  same  be  granted  and  dedicated  to  the  States  and  Ter- 
ritories where  the  same  are  situated,"  etc.21  For  the  essence  of 
the  doctrine  of  the  California  courts  in  its  history  appears  to  be 
less  the  upholding  of  riparian  rights  than  the  upholding  the  dis- 
posal power  of  Congress  and  the  necessity  for  -congressional  action. 
In  fact,  Oregon  has  given  just  this  effect  to  the  Desert  Land  Act,22 
but  it  cannot  be  said  how  far  the  other  States  will  accept  this 
construction  of  that  act,  unless  Congress  puts  it  more  explicitly. 
Congress  has  explicitly  so  provided  only  regarding  waters  in  the 
Black  Hills ; 23  that  is,  has  provided  that  land  patents  shall  not 
hereafter  carry  any  riparian  rights  in  the  Black  Hills  of  the 
Dakotas. 

Likewise  there  would  seem,  under  this  historical  view,  a  field  for 
the  passage  of  Federal  statutes  leading  up  to  water  patents,  just 
as  Congress  has  done  in  the  mining  law  leading  up  to  mine  patents, 
or  legislation  regarding  conservation. 

The  United  States,  until  within  the  last  year  or  two,  has  not 
moved  to  exercise  the  power  which  the  foregoing  historical 
theory  accords.  Now  that  Federal  activity  has  arisen  under  the 
policy  of  conservation,  it  is  being  addressed  to  laws  concerning 
rights  of  way  and  reservoir  sites,  and  not  to  the  waters  them- 
selves, even  in  the  States  whose  courts  recognize  riparian  water- 
rights  in  the  United  States ;  while  recent  statutes  of  the  California 
legislature  declare  for  State  control  and  call  waters  the  property 
of  the  people  of  the  State.24 

20  Stats,  of  1877-78,  p.  1070.  24  Assembly  Joint  Resolution  No.  8, 

21  Caused,    semble,    by   Van    Sickle  Session    of    1911,    dealing   with   Lake 
case.  Tahoe;   Stats.  1911,  c.  406,  for  State 

22  Hough  v.  Porter,  51  Or.  318,  95  control    of    the    acquisition    of   water 
Pae.  732,  98  Pac.  1098,  102  Pac.  728.  powers;    and  Stats.   1911,   c.  407,  de- 

23  A.  C.,  June   11,   1906,   34  Stats.  claring   waters   the    "property   of   the 
at  Large,  234.  people  of  the  State." 

§§  158-166.     (Blank  numbers.) 


§  167,  Ch.  8.    THE  STATE  IN  COLORADO.  (3d  ed.)  185 


CHAPTER  8. 
UNITED  STATES  OR  STATE— COLORADO  DOCTRINE. 

A.     STATEMENT  OF  THE  COLORADO   DOCTRINE. 

§  167.  The  State  system.  t 

§  168.  The  authorities  quoted. 

§  169.  Same. 

§  170.  Water  the  "property  of  the  public"  or  "of  the  State." 

§  171.  Sources  from  which  this  declaration  is  derived. 

§  172.  Construction  given  to  the  declaration. 

§  173.  Objections  raised  on  behalf  of  the  United  States  as  landowner. 

§  174.  Objections  on  behalf  of  private  landowners. 

B.     BASIS   OF  THE   COLORADO  DOCTRINE. 

§  175.  Replies  to  the  foregoing  objections. 

§  176.  Basis  upon  Federal  action. 

§  177.  Basis  upon  absence  of  Federal  action. 

§  178.  Basis  upon  State  sovereignty  alone. 

§  179.  Some  other  arguments. 

§  180.  Views  of  United  States  supreme  court. 

§  181.  Same — Second  period. 

§  182.  Same — Third  period. 

§  183.  Same. 

§  184.  Same. 

§  185.  Some  inconsistencies  and  variations. 

§  186.  Conclusion. 

§  187.  Same. 

§§  188-196.     (Blank  numbers.) 

A.     STATEMENT  OF  THE  COLORADO  DOCTRINE. 

(3d  ed.) 

§  167.  The  State  System.—In  the  States1  following  the  "Colo- 
rado" doctrine  (which,  while  hitherto  opposed  in  the  other  juris- 
dictions by  the  courts,  has  been  triumphing  over  the  California 
doctrine  in  the  supreme  court  of  the  United  States  and  in  the 
State  legislatures,  until  to-day  even  the  courts  of  the  latter  States 
in  many  cases  seem  to  have  been  overruled  by  their  legislatures),2 
the  historical  theory  is  not  in  force.  The  Federal  proprietary  title 
(and  therewith,  the  common-law  rights  of  riparian  owners  as  Fed- 
eral successors  in  interest)  is  denied,  and  instead  there-  is  an 

1  Enumerated  in  sec.  118,  supra.        2  Supra,  sec.  124. 


186  (3ded.)     Pt.  II.     CALIFORNIA  -  COLORADO  DOCTRINES.  §168 

extensive  State  organization  which  has  absolute  control  over  all 
natural  water  resources .  within  their  borders,  whether  on  public 
or  on  private  lands.  All  rights  in  waters  are  held  to  rest  upon 
State  sovereignty  and  State  law. 

The  State  law  proceeds  upon  the  ground  that  the  common  law 
was  unsuited  to  Western  conditions,  and  only  such  parts  of  the 
common  law  are  brought  by  settlers  into  new  communities  as  are 
suited  to  their  conditions— a  familiar  doctrine.  It  rather  denies 
that  the  United  States  as  landowner  was  ever  entitled  to  the  rights 
of  a  riparian  proprietor,  because  the  law  of  the  places  where  the 
lands  lay  never  sanctioned  riparian  rights,  and  because  the  United 
States  has  no  other  rights  than  any  other  landowner  in  the 
State.  Consequently  no  grantee  of  the  United  States  can  have 
riparian  rights.  Instead,  appropriation  is  the  sole  law  recognized. 
The  appropriator  looks  for  his  rights  to  the  State,  and  not  the 
United  States,  these  States  usually  having  constitutional  or  statu- 
tory provisions  expressly  declaring  that  the  ownership  of  all 
waters  is  in  the  State  (or  in  the  public,  which  is  construed  as 
meaning  the  State),  and  that  the  right  to  the  use  thereof  can  be 
obtained  by  appropriation,  and  in  no  other  way.  While  the  Cali- 
fornia courts  started  with  a  Federal  title  and  deduced  the  law  of 
riparian  rights  from  that,  the  Colorado  doctrine  started  from  a 
rejection  of  riparian  rights,  and  deduced  a  rejection  of  Federal 
title  from  that,  since  the  United  States  holds  its  public  land  like 
other  landowners  in  this  respect. 

(3d  ed.) 

§  168.    The  Authorities   Quoted.— In  Willey  v.   Decker3   the 

authorities  in  support  of  this  view  are  presented  in  an  opinion 
by  Mr.  Justice  Potter.  First  setting  forth  the  California  view,  the 
court  says: 

"Upon  that  theory  the  right  acquired  by  prior  appropriation  on 
the  public  domain  is  held  to  be  founded  in  grant  from  the  United 
States  government,  as  owner  of  the  land  and  water,  under  the 
acts  of  Congress  of  1866  and  1870.4 

"In  this  State,  on  the  other  hand,  the  common-law  doctrine 
concerning  the  rights  of  a  riparian  owner  in  the  water  of  a  natural 

3  11   Wyo.   496,   100   Am.   St.   Rep.  *  Citing    U.    S.    Rev.    Stats.,    sees. 

939,  73  Tac.  210.     Mr.  Justice  Potter's       2339,  2340;  U.  S.  Comp.  Stats.  1901, 
opinion  in  this  case  is  one  of  the  no-       p.  1437. 
table   investigations   contained   in   the 
reports. 


§  168  Ch.  8.     THE  STATE  IN  COLORADO.  (3d  ed.)  187 

stream  has  been  held  to  be  unsuited  to  our  conditions;  and  this 
court  has  declared  that  the  rule  never  obtained  in  this  jurisdic- 
tion.6 It  was  said  in  the  opinion  in  that  case  that  'a  different 
principle  better  adapted  to  the  material  condition  of  this  region 
has  been  recognized.  That  principle,  briefly  stated,  is  that  the  right 
to  the  use  of  water  for  beneficial  purposes  depends  upon  a  prior 
appropriation.'  And,  further,  in  explanation  of  the  reasons  for 
the  existence  of  the  new  doctrine,  it  was  said:  'It  is  the  natural 
outgrowth  of  the  conditions  existing  in  this  region  of  country. 
The  climate  is  dry,  the  soil  is  arid  and  largely  unproductive  in 
the  absence  of  irrigation,  but  when  water  is  applied  by  that  means 
it  becomes  capable  of  successful  cultivation.  The  benefits  accruing 
to  land  upon  the  banks  of  a  stream  without  any  physical  appli- 
cation of  the  water  are  few ;  and  while  the  land  contiguous  to  water, 
and  so  favorably  located  as  to  naturally  derive  any  sort  of  advan- 
tage therefrom,  is  comparatively  small  in  area,  the  remainder, 
which  comprises  by  far  the  greater  proportion  of  our  land  other- 
wise susceptible  of  cultivation,  must  forever  remain  in  their  wild 
and  unproductive  condition  unless  they  are  reclaimed  by  irriga- 
tion. Irrigation  and  such  reclamation  cannot  be  accomplished  with 
any  degree  of  success  or  permanency  without  the  right  to  divert 
and  appropriate  water  of  natural  streams  for  that  purpose  and 
a  security  accorded  to  that  right.  Thus,  the  imperative  and 
growing  necessities  of  our  conditions  in  this  respect  alone,  to  say 
nothing  of  the  other  beneficial  uses,  also  important,  has  compelled 
the  recognition  rather  than  the  adoption  of  the  law  of  prior  appro- 
priation. ' 6 

"In  view  of  the  contention  in  Colorado  that  until  1876  the 
common-law  principles  of  riparian  proprietorship  prevailed  in  that 
State,  and  that  the  doctrine  of  priority  of  right  to  water  by  priority 
of  appropriation  was  first  recognized  and  adopted  in  the  constitu- 
tion, the  supreme  court  of  that  State,  by  Mr.  Justice  Helm,  con- 
cluded a  discussion  of  the  matter  as  follows:  'We  conclude,  then, 
that  the  common-law  doctrine  giving  the  riparian  owner  a  right 

5  Citing  Moyer  v.  Preston,  6  Wyo.  of  the  country.     Any  other  rule  would 
308,  71  Am.  St.  Rep.  914,  44  Pac.  845.  offer  an  effectual  obstacle  to  the  set- 

6  In    another   Wyoming    case    it    is  tlement   and    growth    of    this    region, 
said:  "This  use  and  the  doctrine  sup-  and    render    the    lands    incapable    of 
porting  it  is  founded  upon  the  necessi-  successful     cultivation."     Farm     Inv. 
ties  growing  out  of  natural  conditions,  Co.  v.  Carpenter,  9  Wyo.  110,  87  Am. 
and  is  absolutely  essential  to  the  de-  St.  Rep.  918,  61  Pac.  258,  50  L.  R.  A. 
velopment   of    the   material   resources  747. 


188  (3ded.)     Ft.  II.     CALIFORNIA  -  COLORADO  DOCTRINES.  §168 

to  the  flow  of  water  in  its  natural  channel  upon  and  over  his 
lands,  even  though  he  makes  no  beneficial  use  thereof,  is  inappli- 
cable to  Colorado.  Imperative  necessity,  unknown  to  the  countries 
which  gave  it  birth,  compels  the  recognition  of  another  doctrine 
in  conflict  therewith.  And  we  hold  that,  in  the  absence  of  express 
statutes  to  the  contrary,  the  first  appropriator  of  water  from  a 
natural  stream  for  a  beneficial  purpose  has,  with  the  qualifications 
contained  in  the  constitution,  a  prior  right  thereto,  to  the  extent 
of  such  appropriation.'  And  it  was  further  said  that  the  latter 
doctrine  has  existed  from  the  earliest  appropriations  of  water 
within  the  boundaries  of  the  State.7 

"When  the  question  was  first  considered  in  the  State  of  Nevada, 
the  court  held  that  the  patentee  of  the  government  succeeded  to 
all  of  its  rights,  and  among  these  was  the  right  to  have  the  water 
of  a  stream  theretofore  8  diverted  returned  to  its  natural  channel.9 
But  that  case  was  overruled  in  Jones  v.  Adams.10  And  in  Reno 
Smelting  etc.  Works  v.  -Stevenson,11  it  was  unequivocally  declared 
that  the  common-law  doctrine  of  riparian  rights  was  unsuited  to 
the  condition  of  that  State.  The  court  said :  '  Here  the  soil  is  arid 
and  unfit  for  cultivation  unless  irrigated  by  the  waters  of  run- 
ning streams.  The  general  surface  of  the  State  is  table-land, 
traversed  by  parallel  mountain  ranges.  The  great  plains  of  the 
State  afford  natural  advantages  for  conducting  water,  and  lands 
otherwise  waste  and  valueless  become  productive  by  artificial  irri- 
gation. The  condition  of  the  country,  and  the  necessities  of  the 
situation,  impelled  settlers  upon  the  public  lands  to  resort  to  the 
diversion  and  use  of  waters.  This  fact  of  itself  is  a  striking  illus- 
tration and  conclusive  evidence  of  the  inapplicability  of  the  com- 
mon-law rule. ' u 

"The  leading  case  in  Arizona  is  Clough  v.  Wing.13  In  that  case 
it  is  said  that  the  problem  to  be  solved  in  the  arid  portions  of  the 

^  Citing  Coffin  v.  Left  Hand  Ditch  10  19  ]Srev    78,  3  Am.  St.  Rep.  788, 

Co.,  6  Colo.  443.  6  Pac.  442. 

0  -,  ,     .,  ,    ,       „     T  11  20  Nev.  269.  19  Am.  St.  Rep.  364, 

8  Note  the  word  "heretofore  »     In      21  Pac   317   4  L   R   A   6Q 

so  holding   (as  it  did)    the  ear  y  Ne-  12  In    an^ther    N       da    cage    -t    . 
vada    decision   went   to   a   length   not  -d     ,,Th    doctrine    f  rf       iaQ  rf  ht 
to-day  m  force  anywhere      The  Call-  ig  gQ  unsuited  to  the  conditions  e£ist. 
forma  doctrine  says  only  "thereafter ."  •       in  th     Stat      f  N       d          d  .    8Q 
The    "theretofore      was    overruled    m  »MU|t  in  its  operation  to  the  doc- 
Jones    v.    Adams.     The    "thereafter"  //   f                 ia\io      that  it  is  not 
was  not  involved  until  the  Reno  case.  t  of  ^^   and  ^oes  not       evajl 
See  supra,  sec.  87.  £ere  „  Walgb  y  Wallace>  26  Ne^.  299, 

»  Citing   Van    Sickle   v.    Haines,    7  99  Am.  St.  Rep.  692,  67  Pac.  914. 

Nev.  249,  15  Morr.  Min.  Rep.  201.  13  2  Ariz.  371,  17  Pac.  453. 


§  168  Ch.  8.     THE  STATE  IN  COLOEADO.  (3d  ed.)  189 

earth  has  not  been  how  best  to  drain  the  water  off  the  land  and 
get  rid  of  it,  but  how  to  save  it  to  be  conducted  upon  land  in  aid 
of  the  husbandman.  The  learned  judge  who  wrote  the  opinion 
refers  to  the  antiquity  of  irrigation  in  that  section  of  country  and 
in  other  lands,  and  remarks:  'Thus  we  see  that  this  is  the  oldest 
method  of  skilled  husbandry,  and  probably  a  large  number  of  the 
human  race  have  ever  depended  upon  artificial  irrigation  for  their 
food  products.  The  riparian  rights  of  the  common  law  could  not 
exist  under  such  systems;  and  a  higher  antiquity,  a  better  reason, 
and  more  beneficent  results  have  flowed  from  the  doctrine  that  all 
right  in  water  in  non-navigable  streams  must  be  subservient  to 
its  'use  in  tilling  the  soil.'  And,  further,  it  is  said  that  the  com- 
mon law,  so  far  as  the  same  applies  to  the  uses  of  water,  'has 
never  been,  and  is  not  now,  suited  to  conditions  that  exist  here.' 

"The  supreme  court  of  Utah  say:  'Riparian  rights  have  never 
been  recognized  in  this  Territory,  or  in  any  State  or  Territory 
where  irrigation  is  necessary;  for  the  appropriation  of  water  for 
the  purpose  of  irrigation  is  entirely  and  unavoidably  in  conflict 
with  the  common-law  doctrine  of  riparian  proprietorship.  If  that 
had  been  recognized  and  applied  in  this  territory  it  would  still 
be  a  desert;  for  a  man  owning  ten  acres  of  land  on  a  stream  of 
water  capable  of  irrigating  a  thousand  acres  of  land  or  more,  near 
its  mouth,  could  prevent  the  settlement  of  all  the  land  above  him. 
For  at  common  law  the  riparian  proprietor  is  entitled  to  have 
the  water  flow  in  quantity  and  quality  past  his  land  as  it  was  wont 
to  do  when  he  acquired  title  thereto,  and  this  right  is  utterly 
irreconcilable  with  the  use  of  water  for  irrigation.  The  legislature 
of  this  territory  has  always  ignored  this  claim  of  riparian  pro- 
prietors, and  the  practice  and  usages  of  the  inhabitants  have  never 
considered  it  applicable,  and  have  never  regarded  it. ' 14 

"In  disposing  of  what  the  court  calls  the  'phantom  of  riparian 
rights;'  and  declaring  that  the  maxim,  'First  in  time,  first  in  right,' 
should  be  settled  law  in  that  jurisdiction,  the  supreme  court  of 
Idaho  forcibly  state  the  reasons  for  the  new  doctrine:  'Whether 
or  not  it  is  a  beneficent  rule,  it  is  the  lineal  descendant  of  the  law 
of  necessity.  When,  from  among  the  most  energetic  and  enter- 
prising classes  of  the  East,  that  enormous  tide  of  immigration 
poured  into  the  West,  this  was  found  an  arid  land,  which  could  be 
utilized  as  an  agricultural  country,  or  made  valuable  for  its  gold, 

w  Citing  Stowell  v.  Johnson,  7  Utah,  215,  26  Pac.  290. 


190  (3ded.)     Pt.  II.     CALIFORNIA  -  COLOEADO  DOCTRINES.  §168 

only  by  the  use  of  its  streams  of  water.  The  new  inhabitants 
were  without  law,  but  they  quickly  recognized  that  each  man  should 
not  be  a  law  unto  himself.  Accustomed  as  they  had  been,  to  obedi- 
ence to  the  laws  they  had  helped  make,  as  the  settlements  increased 
to  such  numbers  as  justified  organization,  they  established  their 
local  customs  and  rules  for  their  government  in  the  use  of  water 
and  land.  They  found  a  new  condition  of  things.  The  use  of 
water  to  which  they  had  been  accustomed,  and  the  laws  concerning 
it,  had  no  application  here.  The  demand  for  water  they  found 
greater  than  the  supply,  as  is  the  unfortunate  fact  still  all  over 
this  arid  region.  Instead  of  attempting  to  divide  it  among  all,  thus 
making  it  unprofitable  to  any,  or  instead  of  applying  the  common- 
law  riparian  doctrine  to  which  they  had  been  accustomed,  they 
disregarded  the  traditions  of  the  past,  and  established  as  the  only 
rule  suitable  to  their  situation  that  of  prior  appropriation.  This 
did  not  mean  that  the  first  appropriator  could  take  what  he  pleased, 
but  what  he  actually  needed,  and  could  properly  use  without 
waste.  Thus  was  established  the  local  custom,  which  pervaded  the 
entire  West,  and  became  the  basis  of  the  laws  we  have  to-day  on 
that  subject.'  " 15 

As  to  the  effect  of  this  inapplicability  upon  the  common  law, 
the  statutes  of  Nevada  adopted  the  common  law  of  England  in 
the  following  words:  "The  common  law  of  England,  so  far  as  it 
is  not  repugnant  to  or  in  conflict  with  the  constitution  and  laws 
of  the  United  States,  or  the  constitution  and  laws  of  this  State, 
shall  be  the  rule  of  decision  in  all  the  courts  of  this  State."  The 
supreme  court  of  Nevada,  in  Reno  Smelting  etc.  Co.  v.  Steven- 
son,16 construing  this  statute  in  its  application  to  riparian  rights, 
said:  "The  statute  is  silent  upon  the  subject  of  the  applicability 
of  the  common  law,  and  we  think  the  term  'common  law  of  Eng- 
land' was  implied  in  the  sense  in  which  it  is  generally  understood 
in  this  country,  and  that  the  intention  of  the  legislature  was  to 
adopt  only  so  much  of  it  as  was  applicable  to  our  condition." 
And  Judge  Hawley  said  in  declaring  the  law  of  Nevada: 17  "Ripa- 
rian rights  are  founded  upon  the  ancient  doctrine  of  the  common 
law.  If  the  law  is  a  progressive  science,  courts  should  keep  pace 
with  the  progress  and  advancement  of  the  age,  and  constantly  bear 

15  Citing  Drake  v.  Earhart,  2  Idaho  17  Union  Min.  Co.  v.  Dangberg,  81 
(716),  750,  23  Pac.  541.                             Fed.  73. 

16  20    Nev.    289,    19    Am.    St.   Rep. 
364,  21  Pac.  317,  4  L.  R.  A.  60. 


f  168  Ch.  8.    THE  STATE  IN  COLORADO.  (3d  ed.)  191 

in  mind  the  wants  and  necessities  of  the  people  and  the  peculiar 
conditions  and  surroundings  of  the  country  in  which  they  live. 
In  this  connection  it  has  been  said  to  be  one  of  the  excellencies 
of  the  common  law,  that  it  admits  of  perpetual  improvement,  by 
accommodating  itself  to  the  circumstances  of  every  age,  and  applies 
to  all  changes  in  the  modes  and  habits  of  society,  and  in  this  re- 
spect it  will  never  be  outgrown  by  any  refinements,  and  never  out 
of  fashion,  while  the  ideality  of  human  nature  exists."  In  an 
Arizona  case,18  a  concurring  opinion:  "Without  further  elabora- 
tion of  my  reasons,  I  state  my  belief  that  the  utter  incompatibility 
of  the  doctrine  of  riparian  rights  with  the  conditions  of  life  in 
this  territory  is  an  all-sufficient  reason,  under  the  principles  of  the 
common  law  itself,  to  hold  that  that  doctrine  is  not  here  in  force. ' ' 19 
In  the  same  case  on  appeal  to  the  supreme  court  of  the  United 
States,  this  was  approved,  saying  of  a  statute  adopting  the  com- 
mon law  in  general  terms:  "It  is  far  from  meaning  that  the 
patentees  of  a  ranch  on  the  San  Pedro  are  to  have  the  same  rights 
as  owners  of  an  estate  on  the  Thames. ' ' 20 

Under  the  Colorado  doctrine,  the  "grant"  principle  of  the  Cali- 
fornia theory  'is  not  recognized.  "We  had  occasion  recently  to 
consider  whether  the  right  of  a  citizen  to  use  water  within  the 
State  for  irrigation  of  lands  is  granted  by  the  State  or  general 
government,  and  were  unable  to  discover  any  principle  of  that 
kind. "  21  A  patent  from  the  government  to  land  through  which 
water  flows  or  percolates  does  not  give  color  of  title  to  the  water.22 
That  is,  the  land  grant  does  not  confer  even  color  of  title  as  a 

18  Boquillas   etc.   Co.  v.   Curtis,   11  Sup.    Ct.    Eep.    493,    53   L.    Ed.    822. 
Ariz.    128,    89   Pac.    504;    affirmed   in  Cf.    dissenting    opinion    of    McBride, 
213  U.  S.  339,  29  Sup.  Ct.  Rep.  4-93,  J.,   in    Flinn    v.    Vaughn    (Or.),    106 
53  L.   Ed.   822.  Pae.   643,  urging  the  same  argument 

19  Compare    what   was    said   in   an  for  rejection   of  the  common  law  of 
early  California  case  concerning  min-  logging,    saying:    "There   is   no   more 
ing  rights.     Sanderson,  C.  J.,  in  Mor-  good    reason    for    applying    common- 
ton  v.  Solambo  Min.  Co.,  26  Cal.  527,  law   rules   to   riparian   rights   on    our 
4  Morr.  Min.  Rep.  463,  spoke  against  floatable    streams    than    there    is    for 
being  "tied  down  to  the  treadmill  of  applying     the     English     custom     of 
the  common  law"  in  regard  to  mining  primogenitxire,   or  conveyance  by  fine 
rights.     And  compare  the   opinion  of  and  recovery,  to  our  system  of  land 
Shaw,  J.,  in  Katz  v.  Walkinshaw,  141  tenures." 

Cal.  116,  99  Am.  St.  Rep.  35,  70  Pac.  21  Hoge    v.    Eaton,    135    Fed.    411, 

663,   74  Pac.   766,   64  L.  R.   A.   236,  citing  Mohl  v.  Lamar  Canal  Co.    (C. 

concerning    the    law    of    percolating  C.),  128  Fed.  776. 

waters,  and  applying  the  same  reason-  22  Clark  v.  Ashley,  34  Colo.  285,  82 

ing  thereto.  Pac.  588.     See  Cascade  Co.  v.  Empire 

20  Boquillas  L.  &  C.  Co.  v.  Curtis  Co.  (Colo.),  181  Fed.  1011. 
(1909),  11  Ariz.  128,  213  U.  S.  339,  29 


192  (3d  ed.)     Pt.  II.     CALIFORNIA  -  COLOEADO  DOCTRINES.  §  169 

grant  of  the  water.  It  was  held23  that  the  legislature  could  not 
confer  water-rights  by  grant.  Possession  and  use  of  the  water 
are  necessary  to  create  the  right  to  its  continued  use.  Says  the 
supreme  court  of  Utah:  "To  initiate  and  acquire  a  right  in  and 
to  the  use  of  unappropriated  public  water,  whether  on  the  public 
domain  or  within  a  reservation  or  elsewhere,  is  dependent  upon 
the  laws  or  customs  of  the  State  in  which  such  water  is  found."24 
So  it  is  ruled  that  the  United  States  Reclamation  Service  must 
proceed  under  State  law,  and  if  it  condemns  land,  does  so  only 
under  the  general  State  laws.25 

(3d  ed.) 

§  169.     Same. — Perhaps  no  stronger  exposition  of  this  doctrine 

has  been  given  than  in  a  late  Colorado  case.1  Plaintiff  obtained  a 
land  patent  in  1868,  while  Colorado  was  still  a  Territory,  the 
stream  naturally  flowing  therethrough.  Many  years  after  patent 
issued,  a  corporation  organized  to  create  light,  heat  and  power> 
diverted  the  stream  from  his  land.  It  was  held  that  plaintiff  has 
no  cause  of  action ;  and  Mr.  Justice  Campbell,  delivering  the  opin- 
ion of  the  court,  said:  "We  are  entirely  satisfied  that  the  sole 
question  argued  and  submitted  to  the  trial  court  by  counsel  on 
both  sides  was  whether  the  common-law  doctrine  of  continuous 
flow  under  the  facts  disclosed  by  this  record  exists  in  Colorado. 
At  this  late  day  it  would  seem  to  us,  as  it  evidently  did  to  the 
trial  court,  idle  to  make  such  contention  in  this  State.  The  matter 
has  long  ago  been  set  at  rest.  The  authorities  relied  upon  by 
plaintiffs  are  those  which  sustain  the  so-called  California  doctrine, 
first  clearly  and  definitely  announced  by  the  supreme  court  of 
California  in  Lux  v.  Haggin,2  in  which,  inter  alia,  it  was  held  that 
the  common  law  as  to  riparian  ownership  was  not  abolished  by  any 
law  of  that  State,  but  still  existed  there  side  by  side  with  the 
doctrine  of  appropriation.3  The  supreme  court  of  the  United  States 
in  several  cases  has  approved  and  indicated  its  satisfaction  with 

23  Platte  Water  Co.  v.  Northern  Irr.      See>  also>  V€r7  recently,  Hagerman  Co. 
Co.,  12  Colo.  525,  21  Pac.  711.  v-  McMurray   (N.  M.),  113  Pac.  823. 

2  69  Cal.  255,  4  Pac.  919,  10  Pac. 

24  Sowards  v.  Meagher  (Utah),  108       574. 

Pac.  1113.  3  Citing    the    first    edition    of    this 

25  Burley    v.    United    States,     179      book-  sections   16  and   17.     See,  also, 
Fed    i.  sections  18  and  19  of  the  first  edition ; 

sections  22  and  23  of  the  second  edi- 

Sternberger    v.    Seaton    etc.    Co.       tion;  and  sections  117  and  118  of  this, 
(1909),  45  Colo.  401,  102  Pae.   168.      the  t'hird  edition> 


§170  Ch.  8.     THE  STATE  IN  COLORADO.  (3ded.)193 

the  decisions  of  the  State  courts  which  hold  that  the  common-law 
doctrine  has  been  abolished,  and  has  said  that  each  State,  without 
interference  by  the  Federal  courts,  may  for  itself,  and  as  between 
rival  individual  claimants,  determine  which  doctrine  shall  be 
therein  enforced."4  And  later  in  the  same  opinion:  "The  doc- 
trine in  this  State,  that  the  common-law  rule  of  continuous  flow 
of  natural  streams  is  abolished,  is  so  firmly  established  by  our  con- 
stitution, the  statutes  of  the  Territory,  and  the  State,  and  by 
many  decisions  of  this  court,  that  we  decline  to  reopen  or  recon- 
sider it,  however  interesting  discussion  thereof  might  otherwise 
be,  and  notwithstanding  its  importance."  And  again,  in  the  same 
opinion:  "To  uphold  plaintiffs'  cause  of  action  as  made  by  their 
complaint,  and  as  tried  and  submitted  below,  would  necessitate 
the  reversal  of  an  unbroken  line  of  decisions  of  this  court  from 
the  beginning  to  the  present  time,  result  in  tearing  up,  root  and 
branch,  the  statute  law  of  the  Territory  and  of  the  State,  and  the 
nullification  of  the  provisions  of  the  constitution  itself  on  the' 

subject  of   appropriation This   judgment,   being   in  -effect 

that  the  common-law  doctrine  of  continuous  flow  of  a  natural 
stream  is  inapplicable  to  conditions  in  this  State,  and  that  by 
necessary  construction  of  our  local  customs,  statutes,  and  consti- 
tution it  is  abolished,  is  affirmed. ' ' 5 

(3d  ed.) 

§  170.    Water  "the  Property  of  the  Public"  or  "of  the  State." 

Accompanying  this  view  that  the  law  of  appropriation  rests  upon 
the  inapplicability  of  any  other  rule  are  statutes  or  constitutional 
provisions  expressly  declaring  that  the  ownership  of  all  waters  is 
in  the  State  (or  in  the  public).  "In  this  and  other  jurisdictions 
where  the  common  law  in  respect  to  the  use  of  water  and  the 
right  thereto  is  altogether  ignored,  there  has  been  established, 
either  by  judicial  decision  or  statute,  or  both,  as  an  essential  prin- 
ciple, that  the  water  of  all  natural  streams  is  the  property  of  the 
public  or  of  the  State."8 

*  Citing  cases.  found    other    very    late    expressions. 

5  In  a  recent  Idaho  case  (Hutchin-  This    Idaho    case,    however,    upholds 

son  v.  Watson  D.  Co.   (Idaho,  1909),  some    right    in    the    riparian    owner, 

16  Idaho,  484,  133  Am.  St.  Rep.  125,  though  inferior  to  appropriators.     See 

101    Pac.    1059)    and    a   recent    New  supra,  sec.  118,  and  infra,  see.  367. 
Mexico   case    (Hagerman   Co.   v.    Me-  6  Willey   v.   Decker,    11    Wyo.   496, 

Murray  (N.  M.),  113  Pac.  823),  are  100  Am.  St.  Rep.  939,  73  Pac.  210. 
Water  Bights — 18 


194  (3ded.)     Pt.  II.     CALIFORNIA  -  COLORADO  DOCTRINES.  §170 

All  waters  within  the  State  are  declared  to  be  "the  property  of 
the  public"  (or  to  "belong  to  the  public")  in  Arizona,  Colorado, 
Montana,  Nebraska,  Nevada,  New  Mexico,  North  Dakota,  Okla- 
homa, Oregon,  South  Dakota,  Texas,  Utah,  and  Wyoming.7  In  the 
following,  declared  to  be  "the  property  of  the  State":  Idaho, 
Nevada,  North  Dakota,  Wyoming.8  The  California  legislature  in 
1911  declared  waters  the  "property  of  the  people  of  the  State."  8a 

In  California,  where  the  courts  had  refused  to  take  this  stand, 
and  have  considered  title  to  the  usufruct  of  waters  upon  public 
lands  to  be  in  the  United  States,  the.  legislature  at  one  time 
called  upon  Congress  to  abrogate  riparian  rights  and  to  declare 
as  to  the  waters  "that  the  same  be  granted  and  dedicated  to  the 
States  and  Territories  where  the  same  are  situated, ' ' 9  and,  whether 
influenced  by  this  or  not,  I  do  not  know,  Congress  in  1877  (the 
same  year)  passed  the  Desert  Land  Act,  providing  that  all  waters 
upon  public  lands  should  be  and  remain  "free  for  the  appropriation 
and  use  of  the  public,"' which,  in  the  very  important  recent  case 
of  Hough  v.  Porter,10  in  Oregon,  has  been  held  to  have  constituted 
an  irrevocable  dedication  to  the  people  where  the  waters  lay,  and 
to  constitute  a  source  of  local  public  ownership  by  gift  from  the 
United  States.  Following  out  this  idea,  Western  members  of 
Congress  in  1910  introduced  bills  to  grant  power  sites  and  rights 

7  Arizona.— Rev.    Stats.    1901,    sec.  Utah.— Stats.  1905,  c.  108,  sec.  47, 

4174  (running  water  is  "declared  pub-  Stats.  1907,  pp.  56,  248 ;  Comp.  Laws 

lie").  1907,  sec.  1288x18. 

Colorado. — Const.,  art.  16,  sec.  5.  Wyoming. — Stats.  1886;  Rev.  Stats. 

Montana.— Civ.     Code,     sec.     1880.  *887,  sec.  1344. 

See  Smith  v.  Denniff,  24  Mont.  20,  81  8  Idaho. — Civ.  Code  1901,  sec.  2625. 

Am.    St.    Rep.   408,    60   Pac.   398,    50  See     Speer     v.     Stephenson      (Idaho, 

L.  R.  A.  741.     The  section  speaks  of  1909),  16  Idaho,  707,   102  Pac.  365; 

the  waters  "of  this  State,"  but  does  Village    of     Twin     Falls    v.     Stubbs 

not  expressly  go   further.  (Idaho,  1908),  15  Idaho,  68,  96  Pac. 

#«&««*«.— Comp.   Stats.   1903,  sec!  195-     See   also,  Const,  art    15,  sees.  4 

6450;     Cobbey's    Stats.    6796;     Laws  ^nd    5;    McLeans    Rev     Codes     sec. 

1895    t>    260  3240;  Laws  1901,  p.  191,  sec.  9b. 

»r       ,?        cw,<~    -I  ana    ~    VA    c   „    i  Nevada. — Comp.     Laws     1900,    sec. 

Nevada.-Stot*.  1)03,  p    24,  sec    1.  P  ^       • 

New    M^co.-Stats.    1907,    p.    71,  ^  ^^Consi.,  art.  17,  sec. 

sec.  i.  2io 

North iDaTcota-Stet* .1905,  c .34,  Wyoming.— i***    1909,    p.    112,   c. 

sec.  1;  Rev.  Codes  (1905),  sec.  ,604.  ^  £J  j/Const.,  art.  8,  sec.  1.     See, 

Oregon. — Stats.  1909,  c.  221,  sec.  1.  also,  Ibid.,  art.  1,  sec.  31. 

South  Dakota.— Stats.  1905,  p.  201,  8a  Cal.  Stats.   1911,    c.   407,   amdg. 

sec.  1;   Stats.  1907,  p.  373,  sec.  1.  Civ.  Code,  sec.  1410. 

Texas. — Sayles'     Civ.     Stats.     1900,  »  Laws  1877-78,  p.  1070. 

art.  3115  et  seq.  ™  Supra,  sec.  329. 


§  171  Ch.  8.     THE  STATE  IN  COLORADO.  (3d  ed.)  195 

of  way  upon  public  lands  to  the  States,  since  Congress  already  had 
dedicated  the  waters  themselves  to  the  people  of  the  State.11 

(3d  ed.)    - 

§  171.     Sources  from  Which  This  Declaration  is  Derived.— 

State  or  local  public  proprietorship  is  thus  derived  in  the  alterna- 
tive in  the  jurisdictions  (now,  by  statute,  nearly  all  the  Western 
States)  asserting  it;  that  is,  either  as  inherent  in  general  law,  or 
as  having  been  created  by  the  United  States.  Three  considerations 
are  to  be  noted  as  to  this. 

First,  the  proposition  that  State  or  local  proprietorship  is  inher- 
ent law  is  a  result  of  the  change  in  the  way  of  stating  the  idea 
of  the  "negative  community."12  As  the  theory  of  "negative 
community"  had  been  applied  in  the  early  California  days,  the 
corpus  of  running  water  was  held  incapable  of  ownership,  either 
by  private  individuals  or  by  the  State  or  by  the  United  States,13 
and  the  usufruct  or  right  to  its  flow  and  use  belonged  to  the  United 
States  as  landowner  until  it  granted  a  use  to  private  parties.14 
This  negative  idea  that  running  water  as  such  belonged  to  no  one 
became  changed  in  the  younger  States  by  substituting  the  positive 
expression  that  they  belonged  to  the  "State  in  trust  for  everyone"; 
a  change  from  negative  to  positive  expression  similar  to  that  which 
has  taken  place  in  the  way  of  stating  the  law  of  the  beds  oi 
navigable  waters  and  the  law  regarding  wild  game.  Thus,  while 
the  shores  of  the  sea  and  beds  of  navigable  waters  are,  in  the 
civil  law,  in  "the  negative  community"  and  "common"  as  dis- 
tinguished from  "public,"  the  modern  phrase  is  that  they  are 
owned  by  the  State  in  trust  for  the  people.15  The  same  change  is 
fairly  well  established  regarding  wild  animals  or  game.16  And  so 
has  come  the  change  in  the  above  States  from  the  negative  idea 
that  running  waters  as  a  substance  belong  to  no  one,  to  the  positive 
idea  that  they  belong  to  the  ' '  State  in  trust  for  the  people. ' ' 

ll  A  resolution  just  adopted  by  the  invasion   of  the   rights  of  the   people 

California    legislature   concerning   the  of  this  State."     Assembly  Joint  RPSO- 

\vaten>     of     Lake     Tahoe,     protesting  lution   No.   8,   Session   of   1191.     See, 

against  a  contract  made  between  the  further,  supra,  p.  165,  note  20. 

United     States     Reclamation     Service  12  Supra    sec    6 

and    private     parties,     declares     that  .  T^-JJ 

"The    State   of    California   claims    to  ,  13  £idd  v    ^a  ml,   15  Cal    161    76 

own  the  major  .portion  of  the  waters  Am"  Dec'  472>  4  Morr-  Min-  ReP-  571' 

of  said  lake  and  protests  against  the  14  Supra,  sec.  82. 

diversion  of  said  waters,  and  will  re-  15  Supra,  sec.  6. 

sist  the  diversion  contemplated,  as  an  W  Supra,  sec.  33;  infra,  sec.  907. 


196  (3ded.)     Pt.  II.     CALIFOENIA  -  OOLOEADO  DOCTRINES.  §172 

Second,  this  change  was  facilitated  by  the  policy  of  "free  de- 
velopment" established  by  the  United  States  from  the  earliest 
times  for  waters  on  its  public  lands.  This  policy  was  so  firmly 
fixed  by  Congress  by  the  act  of  1866  17  that  it  came  to  be  regarded 
as  inherent  law,  especially  as  the  United  States  never  has  at- 
tempted theretofore  or  thereafter  to  exercise  rights  of  ownership, 
but,  on  the  contrary,  reaffirmed  its  position  in  the  Desert  Land 
Act  of  1877,18  and  because  the  people  at  large  in  the  West  have 
looked  only  to  the  State  as  a  matter  of  fact. 

Third  has  been  the  confusion  between  sovereignty  and  propri- 
etorship. No  lawyer  denies  that  sovereignty  or  regulative  power 
over  public  uses  of  waters  under  the  police  power  resides  in  the 
States,  and  this  has  not  been  distinguished  from  ownership  there- 
of.19 

(3d  ed.) 

§  172.    Construction  Given  to  the  Declaration. — So  far  as  the 

courts  have  considered  the  matter  (there  is  little  discussion  in  the 
reports),  they  have  treated  these  as  declarations  of  sovereignty 
of  the  State,  rather  than  proprietorship.  The  declaration  that  the 
waters  are  "the  property  of  the  State"  was  undoubtedly  intended 
by  the  legislatures  as  an  assertion  or  declaration  that  the  State 
owns  the  waters  the  same  as  a  public  building.20  But  Jhe  courts 
have  tended  to  view  the  water  itself  much  in  the  light  of  the  orig- 
inal idea  of  the  "negative  community"  as  without  any  ownership 
at  all  (neither  private,  State,  or  national),  except  as  to  its  flow  and 
use  or  "usufruct,"  which  rights  of  use  are  subject  to  State  regu- 
lation in  whomsoever  they  may  reside. 

The  courts,  in  the  first  place,  hold  that  declarations  that  the 
waters  are  "the  property  of  the  State"  and  "the  property  of 
the  public"  are  synonymous.  The  Wyoming  court  says:  "There 
is  to  be  observed  no  appreciable  distinction,  under  the  doctrine  of 
prior  appropriation,  between  a  declaration  that  the  water  is  the 
property  of  the  public,  and  that  it  is  the  property  of  the  State,"  21 
and  in  three  States  above  both  expressions  are  used  in  the  statutes. 

17  Supra,  sec.  94  et  seq.  ....  the  principle  in  mind  when  the 

ts  Supra,  sec.   128.  laws    were    enacted    was    undoubtedly 

19  Infra,  sec.  1338  et  seq.  that  the  State  was  proprietor  of  the 

20  "These   provisions  were  founded  water  and   granted   rights  to  its  use. 
on  a  principle  new  to  American  irri-  .  .  .  ."  Bulletin      168,-    U.     S.     Dept. 
gation  law.     The   State  was  declared  Agrie. 

to  be  the  owner  of  the  water,  and  21  Farm  Tnv.  Co.  v.  Carpenter,  ft 
rights  to  its  use  were  to  be  acquired  Wyo.  110,  87  Am.  St.  Rep.  918,  61 
by  grant  or  license  from  the  State;  Pac.  258,  50  L.  R.  A.  747. 


§  172  Ch.  8.     THE  STATE  IN  COLORADO.  (3d  ed.)  197 

Then,  as  to  the  meaning  of  "property  of  the  public,"  while  in 
the  law  of  distribution  to  public  uses  this  is  held  to  give  consumers 
(as  the  public)  rights  of  actual  ownership  in  the  natural  resources 
in  place  of  the  distributing  agencies,22  yet  in  the  present  connec- 
tion it  is  construed  more  as  meaning  the  same  as  the  phrase  "pub- 
lid  juris,"  an  old  phrase  in  the  law;23  that  water  is  a  wandering 
thing,  whose  corpus  is  incapable  of  ownership  either  by  the  State 
or  the  United  States,  the  utmost  right  being  usufructuary,  a  flow 
and  use  only,  and  may  be  used  by  any  member  of  the  public  first 
applying  subject  to  State  police  power  regulation.  "Under  the  rule 
permitting  the  acquisition  of  rights  by  appropriation  the  waters  be- 
come perforce  'publici  juris,'  >>24  and  in  a  Colorado  case25  "the 
waters  of  flowing  streams  are  publici  juris — the  gift  of  God  to  all 
His  creatures. ' ' *  The  State 's  office  is  regulative,  to  see  that  those 
who  use  the  water  do  not  violate  their  duties  to  each  other,2  and  hence 
acts  in  its  sovereign  capacity  only — not  as  owner  of  the  water ;  the 
State  operates  only  under  the  police  power.3  "The  obvious  mean- 
ing and  effect  of  the  expression  that  the  water  is  the  property  of  the 
public  is  that  it  is  the  property  of  the  people  as  a  whole.  What- 
ever title,  therefore,  is  held  in  and  to  such  water  resides  in  the 
sovereign  as  representative  of  the  people.  The  public  ownership,  if 
any  distinction  is  material,  is  rather  that  of  sovereign  than  pro- 
prietor. That  ownership,  however,  is  subject  to  a  particular  trust 
or  use,  specially  defined  in  the  statutes  and  in  the  constitution" 

22  Infra,  sec.  1338  et  seq.  human  life,   like   air."     Mr.   Garfield, 

23  Supra,  sec.  5;  infra,  sec.  688.  before  the  Senate  Committee  on  Pub- 

24  Willey  v.   Decker,   11  Wyo.  496,      lie  Lands,  Feb.  16,  1910. 

100  Am.  St.  Rep.  939,  73  Pac.  210.  2  In   Speer   v.    Stephenson    (Idaho, 

25  Mohl  v.  Lamar  Canal  Co.   (C.  C.       1909),   16   Idaho,  707,   102   Pac.   365, 
Colo.),  128  Fed.  776.  it    is     said     that     the     term     "public 

i  Quoting  Blackstone,  bk.  II,  p.  14,  waters"   refers   to   all   water   running 

and  saying  suoh  is  the  effect  of  the  in  the  natural  channel  of  the  streams, 

Colorado  constitution,  art.  16,  sec.  5.  and  the  State  may  by  proper  legisla- 

"We  shall  presently  see  that  after  tion  regulate  the  appropriation  and 
appropriation  the  title  to  this  water,  use  thereof,  and  private  rights  author- 
save,  perhaps,  as  to  the  limited  quan-  ized  by  the  law  were  simply  to  tho 
tity  that  may  be  actually  flowing  in  use  of  the  public  waters,  and  not  an 
the  consumer's  ditch  or  lateral,  re-  ownership  in  them,  at  least  while  they 
mains  in  the  general  public,  while  the  were  flowing  in  the  natural  channel, 
paramount  right  to  its  use,  unless  for-  3  Robertson  v.  People  ex  rel.  Soule, 
feited,  continues  in  the  appropriator."  40  Colo.  119,  90  Pac.  79,  citing  Farm- 
Wheeler  v.  Northern  Irr.  Co.,  10  Colo.  ers'  etc..  Co.  v.  Southworth,  13  Colo. 
582,  587,  588,  3  Am.  St.  Rep.  603,  17  111,  21  Pac.  3028,  4  L.  R.  A.  767; 
Pac.  487."  White  v.  Farmers'  etc.  Co.,  22  Colo. 

"I   think   the   best    opinion   now   is  191,  43  Pac.  1028,  31  L.  R.  A.  828; 

that  running  water  is  not  a  'property'  Lamson   v.    Vailes.,   27   Colo.    201,    61 

of   the   State   but   that   it   belongs   to  Pac.  231 ;  Fort  L/yon  etc.  Co.  v.  Chew, 

the    public,    a    common    necessity    of  33  Colo.  392,  81  Pac.  37. 


198  (3ded.)     Pt.  II.     CALIFOENIA  -  COLORADO  DOCTRINES.  §172 

(i.  e.,  for  use  by  appropriators) .4  "By  either  phrase,  'property 
of  the  public'  or  'property  of  the  State,'  the  State,  as  represen- 
tative of  the  public  or  the  people,  is  vested  with  jurisdiction  and 
control  in  its  sovereign  capacity. "  5  So  in  Kansas  v.  Colorado,6 
it  was  held  that  the  State's  regulative  power  was  paramount,  with- 
out intimation  of  an  actual  State  ownership. 

As  the  office  of  the  State  under  this  construction  is  only  regu- 
lative and  not  one  of  actual  ownership,  the  Idaho  court  considered 
a  suit  to  determine  existing  rights  purely  one  to  settle  private 
rights.  It  had  been  urged  (as  the  legislature  by  the  declaration 
of  State  and  public  ownership  certainly  intended)  that  it  was  pri- 
marily a  determination  concerning  State  property,  but  the  court 
held  otherwise,  and  held  that  a  public  official  could  not  bring  such 
a  suit  against  all  existing  appropriators  to  show  their  rights.  It 
was  held  a  suit  concerning  private  property  and  not  State  prop- 
erty.7 And  likewise  it  is  held  that  an  appropriation  for  use  out- 
side the  State  is  permissible,  and  not  an  abstraction  of  State 
property.8 

In  North  Dakota  and  Montana  a  declaration  of  State  ownership 
is  held  not  to  prevent  the  existence  of  riparian  rights.9  But  neither 
court  went  further  into  the  matter  than  to  refuse  to  give  effect  to 
the  provision  contrary  to  the  conclusion  upholding  riparian  rights 
arrived  at  in  those  cases.  In  the  Montana  case,10  the  court  says 
that  by  such  declaration  the  State  assumed  to  itself  the  ownership 
of  the  waters  "sub  modo,"  which  is  indefinite,  to  say  the  least. 
In  the  North  Dakota  case  it  was  said  concerning  the  effect  upon 
riparian  rights  of  a  declaration  that  water  is  the  property  of  the 
State:  "Such  rights  are  under  the  protection  of  the  fourteenth 
amendment  to  the  Federal  constitution,  which  protects  property 
against  all  State  action  that  does  not  constitute  due  process  of 
law.  It  follows  that  section  210  of  the  State  constitution  would 
itself  be  unconstitutional  in  so  far  as  it  attempted  to  destroy  those 

4  Willey   v.   Decker,    11   Wyo.   496,  Mohl  v.  Lamar  Canal  Co.  (Colo.),  128 
100  Am.  St.  Rep.  939,  73  Pac.  210.  Fed.  776;  Hoge  v.  Eaton,  supra;  Bean 

5  Farm.    Inv.    Co.    v.    Carpenter,    9  v.  Morris,  159  Fed.  651,  86  C.  C.  A. 
Wyo.   110,   87   Am.   St.   Rep.   918,   61  519. 

Pac.  258,  50  L.  R.  A.  747.  9  Bigelow  v.  Draper,  6  N.  D.   152, 

6  206   U.   S.   46,   27   Sup.   Ct.   Rep.  69  N.  W.  570;   Smith  v.   Denniff,  24 
655,  51  L.  Ed.  956.  Mont.  20,  81  Am.  St.  Rep.  408,  60  Pac. 

7  Bear  Lake  v.  Budge,  9  Idaho,  703,  398,  50  L.  R.  A.  741. 

108  Am.  St.  Rep.  179,  75  Pac.  615.  10  Smith  v.  Denniff,  24  Mont.  20,  81 

8  Willey   v.   Decker,    11   Wyo.   496,       Am.    St.   Rep.    408,   60   Pac.   398,   50 
100  Am.  St.  Rep.  939,  73  Pae.  210;      L.  R,  A.  741. 


§  172  Ch.  8.     THE  STATE  IN  COLORADO.  (3d  e«L)  199 

vested  rights  of  property,  if  it  should,  by  construction,  be  given 
a  scope  sufficiently  wide  to  embrace  such  matters.  For  this  reason 
we  feel  constrained  to  hold,  despite  its  broad  language,  that  sec- 
tion 210  was  not  framed  to  devest  the  rights  of  riparian  owners 
in  the  waters  and  bed  of  all  natural  watercourses  in  the  State." 
It  was  further  said  that  the  declaration  of  State  ownership  pos- 
sibly would  prevent  private  persons  from  totally  diverting  a  water- 
course, thus  construing  it  in  opposition  to  appropriation  entirely.11 
Neither  the  North  Dakota  nor  Montana  decision  lends  much  aid 
in  arriving  at  the  meaning  of  such  phrases,  although,  if  the  declara- 
tion means  that  running  waters  are  "publici  juris,"  they  are  cor- 
rect in  holding  it  not  opposed  to  the  riparian  doctrine.12 

Under  the  Colorado  doctrine,  then,  it  is  denied  that  the  United 
States  has  an  interest  in  the  waters  on  its  lands  as  proprietor,  and 
waters  are  either  owned  by  the  State  in  trust  for  the  people,  or 
are  "publici  juris,"  owned  by  no  one  at  all,  but  free  for  use  by 
all  under  State  police  power  regulation,  which  protects  the  first 
comer,  the  prior  appropriator,  to  the  extent  of  his  beneficial  use. 
As  between  the  latter  two  ideas,  the  choice  of  expression  has  not  yet 
become  fixed;  but  for  our  present  purpose  it  is  enough  to  notice 
that  both  agree  in  denying  proprietary  title  of  any  kind  in  the 
United  States  at  the  present  day.13  Under  both  the  Colorado  and 
California  doctrines  the  State  control  over  public  uses  is,  in  law, 
paramount ;  but  while  the  California  doctrine  recognizes  the  United 
States  as  a  riparian  proprietor,  the  Colorado  doctrine  does  not 
recognize  the  United  States  as  a  proprietor  of  waters  in  any  sense. 

11  Bigelow  v.  Draper,  6  N.  D.  152,  landowners  as  the  proprietors,  not  the 
69  N.  W.  570.  State  at  large.     People  v.  New  York 

12  Supra,  sec.  2  et  seq.;  infra,  see.  etc.  Co.  (1910),  196  N.  Y.  421,  90  N. 
684  et  seq.  E.  441,  Cullen,  C.  J. 

In  a  recent  New  York  case  it  was  13  "By  the   adoption  of  our  State 

held   that  the   State   has  control  over  constitution,  all  of  the  unappropriated 

the  Niagara  River,  but  no  property  or  waters  at  that  time  were  declared  to 

ownership  in  its  waters.     Niagara  etc.  be  public  waters,  and  it  matters  not 

Co.  v.  College  etc.  Co.,  Ill  App.  Div.  through  or  over  whose  land  they  flow." 

770,    98    N.    Y.    Supp.    4.     See,    also,  Speer  v.  Stephenson  (1909),  16  Idaho. 

Auburn  V.  W.  Co.,  90  Me.  537,  38  Atl.  707,  102  Pac.  365. 

561,  38  L.  R.  A.  188.  "The  bill  refers  to  waters  belonging 

In  another  New  York  case,  it  is  said  ,  to    the   government.     I   do   not   know 

that  while  the  State  may  regulate  the  what    waters    belong    to    the    Federal 

use  of  percolating  water,  it  does  not  government.     I  do  not  know  that  the 

own  it  as  a  proprietor.     The  attorney  Federal  government  owns  the  waters." 

general  may  sue  to  enforce  the  regu-  Mr.    Mondell    of    Wyoming,    in    the 

lation,    but   then    only    for    the    com-  House  of  Representatives, 
munity     of     overlying     or     adjacent 


200  (Wed.)     Pt.  II.     CALIFORNIA -COLORADO  DOCTRINES.  §173 

(3d  ed.) 

§  173.  Objections  Raised  on  Behalf  of  the  United  States  as 
Landowner. — By  the  courts  following  the  California  view,  aside 
from  the  practical  objection  above  adverted  to,  denying  the  inap- 
plicability, of  the  common  law,  legal  objections  are  also  urged 
against  the  Colorado  doctrine  as  a  matter  of  constitutional  law. 
The  first  and  most  important  objection  is  that  the  proprietary 
rights  of  the  United  States  as  landowner  are  either  omitted  or 
denied  in  the  Colorado  calculation.  Regarding  the  system  of  ap- 
propriation as  having  force  only  by  the  permission  of  the  United 
States  as  the  original  landowner  of  all  this  region,  the  California 
and  similar  courts  have  expressed  difficulty  in  understanding  the 
view  of  those  States  which,  following  the  Colorado  system,  declare 
that  the  appropriator  receives  his-  rights  from  the  State  alone,  dis- 
regarding the  rights  of  the  United  States  as  original  sole  riparian 
owner,  or  the  riparian  rights  of  the  grantees  of  its  land. 

Granting  that  those  parts  of  the  common  law  which  are  in- 
applicable are  not  brought  in  by  settlers,  yet  the  rights  of  the 
United  States  antedated  the  settlement  of  the  States  in  question. 

Some  right  in  the  United  States  to  the  waters  must,  it  is  said, 
have  attached  to  the  public  land  on  its  original  acquisition  by  the 
United  States  under  such  treaties  as  the  Louisiana  Purchase  or 
the  treaty  of  Guadalupe  Hidalgo.  The  difficulty  is  said  to  be  that 
some  right  to  the  unused  water  flowing  over  the  public  lands  of 
the  United  States  was  originally  the  property  of  the  United  States, 
and  that  a  State  cannot  take  the  property  from  the  United  States 
or  interfere  with  the  primary  disposal  thereof  without  its  consent, 
and  that  to  take  it  from  a  grantee  of  the  United  States  is  a  taking 
of  property  without  due  process  of  law,  within  the  fourteenth 
amendment.  That  the  original  right  of  the  United  States  before 
settlement  of  the  land  must  have  been  that  of  sole  riparian  pro- 
prietor. That  the  United  States,  having  been  sole  riparian  owner 
before  the  settlement  of  the  land,  no  State  can,  by  a  declaration 
of  law  after  settlement,  take  those  rights  as  riparian  owner  from 
the  United  States  or  prevent  it  from  giving  riparian  rights  to  its 
grantee,  or  take  them  away  from  its  grantee. 

Such  a  refusal  to  recognize  the  rights  of  the  United  States,  and 
such  prevention  of  its  granting  riparian  rights  to  the  grantees  of 
its  land  is  said  to  be  an  interference  with  the  primary  disposal  of 
the  public  land;  infringes  on  the  power  of  Congress.  Article  4, 


§  173  Ch.  8.     THE  STATE  IN  COLORADO.  (3d  ed.)  201 

section  3,  clause  2,  of  the  constitution  of  the  United  States,  reads 
as  follows:  "The  Congress  shall  have  the  Power  to  dispose  of  and 
make  all  needful  Rules  and  Regulations  respecting  the  Territory 
or  other  Property  of  the  United  States,  and  nothing  in  this  Con- 
stitution shall  be  so  construed  as  to  Prejudice  any  Claims  of  the 
United  States,  or  of  any  particular  State."  In  Lux  v.  Haggin,14 
after  holding  that  the  right  to  the  water  on  public  lands  originally 
must  have  belonged  to  the  United  States,  as  to  any  landowner, 
as  parcel  thereof,  or  an  incident  thereto,  the  court  says:  "But  when 
the  State  is  prohibited  from  interfering  with  the  primary  disposal 
of  the  public  lands  of  the  United  States,  there  is  included  a  pro- 
hibition of  any  attempt  on  the  part  of  the  State  to  preclude  the 
United  States  from  transferring  to  its  grantees  its  full  and  com- 
plete title  to  the  land  granted,  with  all  its  incidents."  And  fur- 
ther says,  "But  where  one  or  both  of  the  parties  claim  under  a 
grant  from  the  United  States  (the  absolute  owner,  whose  grant 
includes  all  the  incidents  of  the  land,  and  every  part  of  it),  it  is 
difficult  to  see  how  a  policy  of  the  State,  or  a  general  practice,  or 
rulings,  of  the  State  court  with  reference  to  adverse  occupants  on 
public  lands,  can  be  relied  on  as  limiting  the  effect  of  grants  of 
the  United  States,  without  asserting  that  the  State,  or  people  of 
the  State,  may  interfere  with  'the  primary  disposal  of  the  public 
lands.'  ....  Of  course  the  State  cannot  interfere  with  the  pri- 
mary disposition  of  such  lands  by  their  owner.  September  9,  1850, 
the  act  of  Congress  15  was  approved  admitting  the  State  of  Cali- 
fornia into  the  Union  'on  an  equal  footing  with  the  original  States 
in  all  respects  whatever,'  with  the  condition  that  the  State  should 
never  interfere  with  the  primary  disposal  of  the  public  lands  within 
its  limits."16 

In  a  recent  case  it  was  said  that  the  rights  of  an  appropriator 
do  not  rest  on  the  laws  of  a  State  (even  in  Wyoming,  one  of  the 
arid  States),  but  upon  the  laws  of  Congress,  and  the  legislative 
enactment  of  a  State  (Wyoming)  is  only  a  condition  which  brings 

14  69  Cal.  255,  at  373,  10  Pac.  674.  to    take    from    the    grantee   the   flow 

15  9  Stats,  at  Large,  453.  of  the  stream,  acquired  from  or  sought 

16  Such  a  clause  is  contained  in  all  to  be  conveyed  by  the  United  States, 
acts    of    admission.     Compare    N.    D.  and  confer  the  waters  on  one  who  has 
Const.,   art.    16,   sec.    203.     See,   also,  acquired   no   right   to   them   from   the 
Union   Min.   Co.  v.   Ferris,   Fed.   Cas.  United  States,  be  an  interference  with 
No.  14,371,  2  Saw.  176,  8  Morr.  Min.  the    primary    disposal    of    the    public 
Rep.  90.  lands!"     Lux  v.  Haggin,  69  Cal.  255, 

"Would  not  a  State  law  which,  in      at  372,  10  Pac.  674. 
advance  of  the  grant,  should  attempt 


202  (3d  ed.)     Pt.  II.     CALIFORNIA  -  COLORADO  DOCTRINES.  §  174 

the  law  of  Congress  into  force.17  In  another  case  18  the  court  says : 
"In  the  Eastern  part  of  Montana  the  United  States  acquired  its 
title  to  lands  by  virtue  of  what  is  called  the  'Louisiana  Purchase.' 
There  cannot  be  one  rule  as  to  the  right  to  the  flow  of  water  over 
its  lands  in  Montana  and  another  rule  as  to  its  lands  in  Iowa  and 
Missouri."  "If  a  person  receives  a  patent  from  the  United  States 
for  land  subject  only  to  accrued  water-rights,  that  is,  existing 
water-rights,  and  as  an  incident  to  or  part  of  this  land,  there  is 
water  flowing  over  the  same  or  upon  the  same,  he  would  have 
all  the  rights  the  United  States  had  at  that  time.  I  do  not  think 
any  State  law  or  custom  can  take  away  such  rights  except  for  some 
public  purpose." 

As  to  the  early  "phantom"  that,  before  the  act  of  1866,  the 
pioneers  were  mere  trespassers  on  public  lands,  it  is  forgotten; 
but  the  Colorado  doctrine  in  effect  denies  that  by  asserting  that 
the  pioneers  had  rights  under  State  law,  without  resorting  to  any 
theory  of  Federal  action  to  elevate  them  from  in  fact  being  mere 
trespassers  (as  the  California  court  had  felt  bound  to  do  by  pre- 
suming a  Federal  grant). 

As  to  the  early  Colorado  decisions  usually  referred  to,  they  were 
only  dictum,  says  Lux  v.  Haggin.  as  the  actual  decisions  involved 
only  land  grants  subsequent  to  the  diversion.  "In  CoSin  v.  Left- 
Hand  Co.,  ....  the  appropriation  of  the  water  was  prior  to  the 

patent There  is  nothing  in  that  case  which  would  give 

preference  to  an  appropriation  of  water  made,  as  in  the  case  at 

bar,  long  after  the  grant  of  the  land It  would  seem  clear, 

however,  that  the  rights  of  parties  who  claimed  title  under  grant 
from,  the  United  States  of  parts  of  the  public  domain  must  be  de- 
termined by  reference  to  laws  of  the  United  States  relating  to 
the  disposition  of  its  domain;  and  this  fact  is  recognized  by  the 
supreme  court  of  Colorado,  which  appeals  to  Broder  v.  Water  Co. 
as  supporting  its  interpretation  of  those  laws. ' ' 19 

(3d  ed.) 

§  174.     Objections  on  Behalf  of  Private  Landowners. — It  is 

next  objected  that,  as  a  State  cannot  prevent  the  United  States 
giving  riparian  rights  to  its  grantee,  the  Colorado  law  takes  the 
private  landowner's  property  from  him  without  due  process  of 

17  Anderson   v.   Bossman,   140  Fed.  19  Lux  v.  Haggin,  69  Cal.  255,   10 

14,  at  21.  Pac.  674. 

is  Cruse  T.  McCauley,  96  Fed.  369. 


§  174  Ch.  8.     THE  STATE  IN  COLORADO.  (3d  ed.)  203 

law,  after  it  is  given  him  by  the  United  States,  in  permitting  its 
diversion  from  him  by  subsequent  appropriators.  Lux  v.  Haggin 
says :  ' '  The  right  to  the  use  of  the  water  as  part  of  the  land  once 
vested  in  its  private  grantee,  the  State  has  no  power  to  devest  him 

of  the  right  except  on  due  compensation Aridity  of  the 

soil  and  air  being  made  the  test,  the  greater  the  aridity  the  greater 
the  injury  done  to  the  riparian  proprietors  below  by  the  entire 
diversion  of  the  stream,  and  the  greater  the  need  of  the  riparian 
proprietor  the  stronger  the  reason  for  depriving  him  of  the  water. 
It  would  hardly  be  a  satisfactory  reason  for  depriving  riparian 
lands  of  all  benefit  from  the  flow  that  they  would  thereby  become 
utterly  unfit  for  cultivation  or  pasturage,  while  much  of  the  water 
diverted  must  necessarily  be  dissipated."20  In  Washington  it  was 
recently  held21  that  an  act  of  the  legislature,  authorizing  a  land- 
owner to  use  all  the  spring  water  arising  on  his  land,  and  thereby 
destroying  the  use  of  such  water  to  the  lower  riparian  owner, 
would  be  unconstitutional,  as  a  taking  or  destroying  of  property 
without  due  process  of  law.22 

Necessity  has  its  limits  as  an  argument,  it  is  said.  "While  the 
argument  db  inconvenienti  should  have  its  proper  weight  in  ascer- 
taining what  the  law  is,  there  is  no  'public  policy'  which  can  em- 
power the  courts  to  disregard  the  law,  or,  because  of  an  asserted 
benefit  to  many  persons  (in  itself  doubtful),  to  overthrow  the  set- 
tled law We  know  of  no  decisions  which  intimate  that  a 

difference  in  climatic  or  geographical  conditions  may  operate  to 
transfer  a  right  of  property  from  those  in  whom  a  right  of  prop- 
erty is  vested  by  the  common  law. ' ' 23  And  in  another  case :  ' '  But 
how  it  can  be  held  that  that  which  is  an  inseparable  incident  to 
the  ownership  of  land  in  the  Atlantic  States  and  the  Mississippi 
valley,  is  not  such  an  incident  in  this  or  any  other  of  the  Pacific 
States,  we  are  unable  to  comprehend.  It  certainly  cannot  be  true 
that  a  difference  in  climatic  conditions  or  geographical  position  can 

20  See,    also,    Rossmiller    v.    State,  the  ownership  of  property  by  its  mere 

114  Wis.   169,   91   Am.  St.  Rep.   910,  fiat.     It  can  no  more  accomplish  that 

89  N.  W.  839,  58  L.  R.  A.  93,  where  result  in  that  way  than  it  can  change 

it  was  held,  among  other  things,  that  the    laws    of    nature    by    legislative 

the  legislature  could  not  declare  that  declaration." 

"ice  formed  upon  meandered  lakes  of          21  Nielson  v.  Sponer,  46  Wash.  14, 

the  State  is  the  property  of  the  State."  123  Am.  St.  Rep.  910,  89  Pac.  155. 
In    this    connection    the;    court    said:  22  See,  also,  Hollett  v.  Davis  (1909), 

"The  legislature  has  no  such  arbitrary  64  Wash.  326,  103  Pac.  423. 
power,    under    our   constitutional   svs-          23  Lux  v.  Haggin. 
tern,  as  that  of  changing  the  nature  «f 


204  (3ded.)     Pt.  II.     CALIFORNIA- COLOEADO  DOCTRINES.  §174 

operate  to  deprive  one  of  a  right  of  property  vested  in  him  by  a 
well-settled  rule  of  common  law.  The  mere  fact  that  the  appellants 
will  not  be  able  to  occupy  or  cultivate  their  lands  as  they  hereto- 
fore have  done  unless  they  can  irrigate  them  with  water  taken  from 
the  Ahtanum  River  is  no  sufficient  reason  for  depriving  the  re- 
spondents, who  settled  upon  that  stream  in  pursuance  of  the  laws 
of  the  United  States,  of  the  natural  rights  incident  to  their  more 
advantageous  location.  The  necessities  of  one  man,  or  of  any  num- 
ber of  men,  cannot  justify  the  taking  of  another 's  property  without 
his  consent,  and  without  compensation.  If  it  be  true,  as  claimed  by 
appellants,  that,  if  the  judgment  of  the  court  below  is  affirmed,  their 
lands  will  again  become  a  barren  waste,  and  cease  to  '  blossom  as  the 
rose, '  it  is  equally  true  that,  if  the  waters  of  the  river  are  diverted 
from  its  channel,  the  premises  of  the  respondents  will  become  unpro- 
ductive and  utterly  worthless. "  24  In  Nebraska  it  is  said : 25  "  "We  do 
not  feel  justified  in  departing  from  a  position  so  generally  recog- 
nized and  accepted  as  being  correct,  so  well  supported  by  reason  and 
authority,  and  which,  it  is  believed  is  in  soundness  impregnable. 
....  Not  only  should  the  inapplicability  of  a  common-law  rule  be 
general,  extending  to  the  whole  or  the  greater  part  of  the  State,  or 
at  least  to  an  area  capable  of  definite  judicial  ascertainment,  to 
justify  the  courts  in  disregarding  such  rule,  but  we  think,  in  view 
of  the  ease  with  which  legislative  alteration  and  amendment  may 
be  had,  the  power  to  declare  established  doctrines  of  the  common 
law  inapplicable  should  be  used  somewhat  sparingly.  In  the  whole 
course  of  decisions  in  Nebraska,  from  the  territorial  courts  to  the 
present,  this  power  has  been  exercised  but  three  times. ' ' 1 

In  a  late  case  the  California  court  emphatically  reaffirmed  the 
stand  taken  in  Lux  v.  Haggin,  saying  through  Mr.  Justice  Sloss: 
"It  is  argued  that  unless  appropriators  are  permitted  to  divert 
and  store  for  future  use  water  which  would  otherwise  run  into  the 

24  Benton  v.  Johncox,  17  Wash.  277,  and  money  as  well  as  water,  but  he 

61  Am.  St.  Rep.  912,  49  Pac.  498,  39  cannot    have    either    unless    he    first 

L.  R,  A.  107.  makes   it   his   own."     24   Pa.   302,   64 

Black,  J.,  said  in  Wheatley  v.  Chris-  Am.  Dec.  657,  11  Morr.  Min.  Rep.  24. 

man:    "The   necessities   of   one   man's  25  Crawford    Co.    v.    Hathaway,    67 

business    cannot   be    the    standard    of  Neb.   325,   ]08  Am.   St.  Rep.   647,   93 

another's  right  in  a  thing  which  be-  N.  W.  781,  60  L.  R,  A.  889. 

longs    to    both If    he    needed  1  In  a  Texas  case  it  is  said:  "It  is 

more,  he  was  bound  to  buy  it.     How-  difficult  to  see  how  the  courts  of  this 

ever  laudable  his  enterprise  might  be,  State  can  ignore  the  common  law  as 

he  cannot  carry  it  on  at  the  expense  a  rule  of  decision  where  it  is  made  so 

of  his  neighbor.     One  who  desires  to  by   statute."     Diamond  v.   Harris,   33 

work  a  lead  mine  may  require  land  Tex.    637. 


§  174  Ch.  8.     THE  STATE  IN  COLOEADO.  (3d  ed.)  205 

sea  and  be  wasted,  there  will  be  a  failure  to  make  the  most  bene- 
ficial use  of  the  natural  resources  of  the  State,  and  that  riparian 
owners  should  not  be  permitted  to  obstruct  the  development  of  these 
resources.  It  may  be  that  if  nonriparian  owners  are  permitted  to 
intercept  the  winter  flow  of  streams  in  order  to  irrigate  nonripa- 
rian lands  or  to  develop  power,  the  water  so  taken  will  permit  the 
cultivation  of  more  land  and  benefit  a  greater  number  of  people 
than  will  be  served  if  the  flow  continues  in  its  accustomed  course. 
But  the  riparian  owners  have  a  right  to  have  the  stream  flow  past 
their  land  in  its  usual  course,  and  this  right,  so  far  as  it  is  of  regu- 
lar occurrence  and  beneficial  to  their  land  is,  as  we  have  frequently 
said,  a  right  of  property,  'a  parcel  of  the  land  itself.'  Neither 
a  court  nor  the  legislature  has  the  right  to  say  that  because  such 
water  may  be  more  beneficially  used  by  others  it  may  be  freely 
taken  by  them.  Public  policy  is  at  best  a  vague  and  uncertain 
guide,  and  no  consideration  of  policy  can  justify  the  taking  of  pri- 
vate property  without  compensation.  If  the  higher  interests  of 
the  public  should  be  thought  to  require  that  the  water  usually  flow- 
ing in  streams  of  this  State  should  be  subject  to  appropriation  in 
ways  that  will  deprive  the  riparian  proprietor  of  its  benefit,  the 
change  sought  must  be  accomplished  by  the  use  of  the  power  of 
eminent  domain.  The  argument  that  these  waters  are  of  great 
value  for  the  purposes  of  storage  by  appropriators  and  of  small 
value  to  the  lower  riparian  owners  defeats  itself.  If  the  right 
sought  to  be  taken  be  of  small  worth,  the  burden  of  paying  for  it 
will  not  be  great.  If,  on  the  other  hand,  great  benefits  are  con- 
ferred upon  the  riparian  lands  by  the  flow,  there  is  all  the  more 
reason  why  these  advantages  should  not,  without  compensation,  be 
taken  from  the  owners  of  these  lands  and  transferred  to  others."2 
What  is  "public  interest"?  2a  For  example,  the  California  court 
in  one  recent  instance,  admittedly  treating  a  case  as  one  of  first 
impression,  unbound  by  precedent  in  the  specific  case  and  seeking 
only  for  the  public  interest,  unanimously  applied  the  riparian  doc- 
trine as  imperatively  demanded  by  conditions  in  the  Santa  Clara 
Valley.3  In  a  recent  New  Mexico  case,  under  a  statute  demanding 
an  inquiry  into  the  public  interest  in  a  certain  other  water  matter, 
the  case  went  through  four  different  tribunals  all  looking*  for  the 

2a  Elsewhere,    again,    this    question  similarity   of    this    opinion    to    Silver 

must  be  met.     See  infra,  sec.  649.  Spring  etc.  Co.   v.  Waukuck  etc.   Co. 

2  Opinion  upon  rehearing  in  Miller  (1882),  13  B.  I.  611,  15  Eep.  94! 

&  Lux  v.  Madera  etc.  Co.  (1909),  155  3  Miller  v.  Bay  Cities  W    Co     157 

Cal.  59,  99  Pac.  502,  22  L.  E.  A.,  N.  Cal.  256,  107  Pac.   117,  27  L.  E.  A.. 

8.,  391,  italics  inserted.     Compare  the  N.  S.,  772. 


206'(3ded.)     Pt.  II.     CALIFOENIA  -  COLORADO   DOCTRINES. 


§174 


true  public  interest,  and  most  of  them  disagreed  as  to  what  the 
public  interest  was.4  Statesmen  themselves  from  time  immemorial 
have  disagreed  upon  it.5  There  has  always  been  some  suggestion 
in  the  California  reports  looking  to  the  adoption  of  the  ground 
of  "shaping  the  law  by  court  decision  to  make  it  applicable  to 
conditions"  (the  individual  judges  never,  in  the  history  of  the 
State,  being  wholly  unanimous  upon  the  matter).6  But  the  opinion 
of  Mr.  Justice  Sloss  just  quoted  represents  the  holding  that  has 
consistently  prevailed  in  California  in  actual  decision,  because,  for 
historical  reasons,  the  law  from  pioneer  days  was  cast  into  the  mold 
given  to  it  by  the  public  land  question  and  the  riparian  rights  of 
the  United  States.7 

There  has  been,  in  all  the  Western  States,  an  adoption  of  the 
common  law  as  the  basis  of  their  general  system  of  laws,  irrespec- 
tive of  the  law  of  waters.8 


4  Young   v.    Hinderlider    (N.    M.), 
110  Pac.  1045. 

5  It  may  become  quite  vague;   for 
example,  "The  rule  given  in  the  Ser- 
mon on  the  Mount  to  distinguish  be- 
tween true  and   false  prophets  is  the 
true  test  by  which  to  determine  what 
the  common   law   is  when  applied   to 
new   conditions.     This   test   is   always 
applied   by   learned   jurists   to    deter- 
mine what  is  good  law."     (Argument 
of  counsel  for  the  appropriator  in  Lux 
v.  Haggin,  vol.  1093,  Sup.  Ct.  Rec.,  p. 
243.)     Compare  the  statement  of  Me- 
Bride,  J.,  in  Flinn  v.  Vaughn   (Or.), 
106    Pac.    643,    that    "The    American 
courts   substituted   common   sense   for 
common  law."     If  cases  are  to  be  de- 
cided upon  a  judge's  native  inspira- 
tion,   where    does    the   law    come    inf 
What  would  be   the   use   of   such   ex- 
pensive law  schools,  or  even  of  legisla- 
tures ? 

6  See   the   percolating   water   cases, 
infra,    Part    V,    applying    the    "inap- 
plicability" principle   in  favor  of  re- 
jecting the  common  law  of  percolating 
waters,   and   adopting,   to   suit   condi- 
tions, a  system  which,  it  can  now  be 
seen,  is  substantially  the  same  as  the 
law    of    riparian    rights    on    streams. 
There  the  California  court   brings  in 
the  riparian  principles  de  novo  on  the 
ground  that  they  are  imperatively  re- 
quired by  conditions. 

See,  also,  San  Joaquin  Co.  v.  Fresno 
Flume  Co.  '(1910),  158  Cal.  626,  112 
Pac.  182.  Also  cases  cited  infra,  sec. 
673,  saying  that  the  common  law  be- 


tween riparian  owners  has  been  "modi- 
fied" in  California.  Purely  obiter 
dictum.  See  infra,  sec.  827. 

7  Supra,  cc.  5,  7.  In  the  pioneer 
days,  the  "inapplicability"  argument 
appeared  only  in  the  opinions  of  Chief 
Justice  Murray.  He  at  first  opposed 
the  recognition  of  the  doctrine  of  ap- 
propriation at  all,  dissenting  in  Con- 
ger v.  Weaver,  6  Cal.  548,  65  Am. 
Dec.  528,  1  Morr.  Min.  Rep.  594,  and 
when  overruled  by  the  rest  of  the 
court,  acquiesced  only  on  this  ground. 
(Hoffman  v.  Stone,  7  Cal.  46,-  4  Morr. 
Min.  Rep.  520 ;  Crandall  v.  Woods, 
8  Cal.  136,  1  Morr.  Min.  Rep.  604. 
See,  also,  Hill  v.  King,  8  Cal.  338,  4 
Morr.  Min.  Rep.  533).  With  the  single 
exception  of  Chief  Justice  Murray 
(whose  early  death  soon  removed  even 
that),  the  California  court  from  its 
first  decisions  disclaimed  having  acted 
upon  that  ground,  for  the  reasons  we 
have  related,  which  were  of  pressing 
weight  in  pioneer  times  and  are  again 
to-day  coming  into  prominence  in  con- 
nection with  the  Federal  claim  to  con- 
trol in  pursuance  of  the  policy  of 
conservation. 

Indeed,  in  the  pioneer  California 
cases,  instead  of  claiming  an  abroga- 
tion or  modification  of  the  common 
law,  there  was  some  contention  that 
the  common  law  had  not  been  de- 
parted from  even  for  the  public  lands. 
Supra,  sec.  79. 

8  United  States  v.  Rio  Grande  etc. 
Co.,  174  U.  S.  706,  19  Sup.  Ct.  Rep. 


§§175,176  Ch.  8.     THE   STATE  IN   COLORADO.  (3d  ed.)  207 

B.     BASIS  OF  THE  COLOEADO  DOCTRINE. 
(3d  ed.) 

§  175.  Replies  to  the  Foregoing  Objections. — In  most  deci- 
sions following  the  Colorado  doctrine  no  answer  to  the  foregoing 
objections  is  sought ; 9  they  are  seldom  noticed ;  and  in  the  recent 
decisions  of  the  supreme  court  of  the  United  States,  they  are  not 
mentioned.10  The  matter  is  usually  rested  upon  the  independent 
ground  of  State  sovereignty,  inherent  in  State  rights.  There  is, 
however,  some  authority  basing  the  Colorado  doctrine  on  Federal 
as  distinguished  from  State  action,  or  simply  upon  Federal  in- 
action, and  we  shall  consider  these  first,  and  the  State  sovereignty 
basis  last. 

(3d  ed.) 

§  176.    Basis  upon  Federal  Action. — As  a  direct  answer,  the 

Wyoming  court  has  said11  that  the  first  Wyoming  constitution  con- 
tained provisions  declaring  the  waters  the  property  of  the  State, 
and  rejecting  riparian  rights.  This  constitution  was  ratified  by 
Congress  on  the  admission  of  Wyoming  into  the  Union ;  and  thereby 
the  United  States  consented  to  this  system.  A  similar  ratification 
is  also  claimed  on  behalf  of  Colorado  in  the  briefs  in  Kansas  v. 
Colorado.  But  it  is  said  in  Lux  v.  Haggin  that  this  cannot  cover 
the  point  in  States  having  no  such  constitutional  provisions,12  nor 
in  those  where  such  provisions  rest  on  subsequent  amendment  or 
legislation  which  never  had  the  express  ratification  of  Congress. 

Again,  it  is  said  that  the  abrogation  of  the  common  law  took 
place  in  the  arid  States  from  their  first  settlement  while  still  Terri- 
tories, and  thereby  was  accomplished  by  the  United  States  itself, 
since  the  territorial  government  is  a  mere  agency  of  the  United 
States.13 

But  when  the  basis  for  the  Colorado  doctrine  is  sought  in  Federal 
action,  it  is  usually  rested  upon  the  act  of  1866  and  the  Desert 
Land  Act  of  1877.14  On  behalf  of  the  Colorado  doctrine,  it  has 
been  argued  that  the  acts  of  1866  and  1877  were  an  irrevocable 
surrender  by  the  United  States  of  its  proprietorship  in  the  waters 

770,   43   L.    Ed.    1136.     (See    8    Cyc.  12  Lux  v.  Haggin,  69  Cal.  255,  at 

375;    6   Am.   &   Eng.   Ency.   of   Law,      352,  10  Pac.  674. 

13  Boquillas  etc.  Co.  v.    Curtis.   11 

9  See  quotations  above.  Ari      ^    g9  p        5Q5 

10  Infra,  sec.  180  et  seq. 

11  Farm    etc.   Co.   v.    Carpenter,   9  !•*  For    the    history    of    these    acts, 
Wyo.   110,  87   Am.  St.  Rep.   918,  61      see  supra,  chapters  5  and  6. 

Pac.  258,  50  L.  K.  A.  747. 


208  (3ded.)     Pt.  II.     CALIFORNIA  -  COLORADO  DOCTRINES.  §176 

to  the  State.  In  a  New  Mexico  case15  it  is  said:  "The  riparian 
rights  of  the  United  States  were  surrendered  in  1866.  Rev.  Stats., 
sec.  2339."  And  as  to  this:  "It  is  claimed  that  this  statute  was 
^a  grant  by  the  Federal  government  to  the  people  of  the  State  of 
the  waters  on  the  public  domain. " 16  'It  has,  somewhat  differently, 
been  said  that,  whatever  might  be  the  relation  of  these  acts  to  the 
proprietorship  of  the  United  States,  yet  it  was  a  complete  and 
irrevocable  surrender  of  political  control  to  the  State.  In  United 
States  v.  Rio  Grande  Dam  &  Irr.  Co.,17  Mr.  Justice  Brewer,  in 
speaking  of  the  act  of  1866,  the  Desert  Land  Act  of  1877,  and  the 
Right  of  Way  Act  of  March  3,  1891,18  says:19  "In  reference  to  all 
these  cases  of  purely  local  interest  the  obvious  purpose  of  Congress 
was  to  give  its  assent,  so  far  as  the  public  lands  were  concerned, 
to  any  system,  although  in  contravention  to  the  common-law  rule, 
which  permitted  the  appropriation  of  those  waters  for  legitimate 
industries."  In  a  Wyoming  case  it  is  said:20  "If  any  consent  of 
the  general  government  was  primarily  requisite  to  the  inception 
of  the  rule  of  prior  appropriation,  that  consent  is  to  be  found  in 
several  enactments  by  Congress,  beginning  with  the  act  of  July  26, 
1866,  and  including  the  Desert  Land  Act  of  March  3,  1877.  Those 
acts  have  been  too  often  quoted  and  are  too  well  understood  to 
require  a  restatement  at  this  time  at  the  expense  of  unduly  extend- 
ing this  opinion." 

As  in  the  case  last  quoted,  the  reference  to  these  Federal  statutes 
is  usually  made  in  the  desert  States,  for  a  much  broader  pur- 
pose then  that  for  which  the  California  and  similar  courts  refer  to 
them.  ,  The  purport  of  this  new  construction  may  be  summed  up 
as  follows :  That  by  the  acts  of  1866  and  1877  Congress  irrevocably 
declared  that  rights  in  waters  should  be  a  matter  of  local  law,  for 
each  jurisdiction  to  declare  for  itself,  and  that  the  public  domain 
would  be  disposed  of  in  subordination  to  such  local  system.  If 
the  local  system  ignore  Federal  proprietorship  in  the  waters  and 
ignore  riparian  rights,  then  such  is  the  system  sanctioned  by  the 
Federal  government,  and  as  such  is  consequently,  by  Federal  action, 
binding  on  the  government's  grantees  of  land  who  would  otherwise 

15  United    States    v.    Rio     Grande  «  "4TU-^  ^V9  Sup'  Ct'  *** 

gtm  &  Irr.  Co,  9  N.  M.  303,  51  Pa,      770,  «  ^U*^  ^ 

19  At  page  706. 

l«  Crawford  v.  Hathaway,  60  Neb.  20  Farm    etc.  Co.    v.    Carpenter,   9 

754,     84    N.     W.     273,     denying   the       Wyo.    110,   87   Am.   St.   Rep.   918,   61 
validity  of  the  contention.  pac.  258,  50  L.  E.  A.  747. 


§  176  Ch.  8.     THE  STATE  IN  COLORADO.  (3d  ed.)  209 

have  riparian  rights ;  and  that  this  Federal  position  is  confirmed  by 
the  subsequent  congressional  enactments.21  A  collection  of  Federal 
enactments  in  that  regard  is  given  in  the  collection  of  Federal  stat- 
utes upon  a  later  page.22 

Again,  irrespective  of  the  rights  of  the  United  States  itself,  the 
Federal  acts  have  been  declared  to  be  aimed  directly  against  ripa- 
rian rights  of  private  parties,  by  Congress  itself,  and  even  as  to 
private  land  patented  before  diversion  by  appropriators.  A  late 
case  says:  " Congress  itself  has  by  legislation,  in  effect,  declared 
that  the  common-law  doctrine  does  not  apply  to  the  waters  of  the 
non-navigable  streams  upon  the  public  lands  in  the  arid  portions 
of  the  Western  States  and  Territories,"  etc.23  In  one  case,  for 
example,24  these  statutes  are  referred  to  as  a  declaration  on  the 
part  of  the  United  States  of  its  intention  never  (even  if  it  has  the 
power)  to  grant  riparian  rights  to  any  person;  but  always  to  re- 
serve the  waters  from  the  land  grants.25 

The  Oregon  court  has  recently,  as  a  matter  of  construction  of 
the  Desert  Land  Act  of  1877,  departed  from  its  previous  rulings 
following  the  California  doctrine,  and  adopted  a  rule  very  similar 
to  that  of  Colorado,  holding  that  as  to  all  land  titles  acquired  since 
that  act,  riparian  rights  are  abolished  by  Congress  by  the  proviso 
in  the  act  that  waters  shall  remain  free  for  appropriation  by  the 
public;  that  the  Federal  government,  for  itself  and  its  subsequent 
patentees,  thereby  surrendered  its  water-rights,  an  executed  irrevo- 
cable dedication  to  those  of  the  public  who  might  thereafter  appro- 
priate 'the  water;  and  this  has  been  said  by  the  supreme  court  of 
the  United  States  to  rest  upon  plausible  grounds.1  This  construc- 
tion of  the  Desert  Land  Act  we  have  already  considered  elsewhere.2 
It  meets  the  objection  that  the  State  cannot  legislate  for  the  dis- 
posal of  the  public  lands,  by  saying  that  there  is  no  necessity  for 

21  See    article  by    Judge    Hunt  of  natural  construction  of  sections  2339 
Montana,    in    17    Yale   Law   Journal,  and   2340."     Atkinson   v.   Washington 
585.  Irr.   Co.,  44  Wash.   75,   120    Am.   St. 

22  Infra    sec    1429.  ReP-    978>   ^   Pac-    1123-     See  State 

Af^r,;«v,<-  «„„   n«  ex  rel-   Liberty  Lake   etc.   Co.   v.   Su- 

,/?  Van  ?>*%,!%  *£dm8ht  Sun  Co"  perior  Court,  47  Wash.   310,  91  Pac. 

(Alaska),  1(7  Fed.  90.  £fis 

24  Tynon  v.  Despain,  22  Colo.  240, 

43  Pac    1039  Boqmllas   etc.  Co.  v.    Curtis,   213 

25  Referring  to  Tynon  v.  Despain,      U.  S.  339    29  Sup.  Ct.  Eep.  494,  53 
supra,    the    Washington    court    says:      L-  Ed-  822- 

"But  this,  it  seems  to  us,  is  an  un-          2  Supra,  sees.  128-130. 
Water  Rights — 14 


210  (3ded.)     Pt.  II.     CALIFORNIA  -  COLORADO  DOCTRINES.  §177 

it  to  do  so,  as  Congress  already  has  taken  the  desired  action.3  It 
should  be  noted  that  this  construction  of  the  Desert  Land  Act  has 
not  been  expressly  taken  until  this  case;  and  Congress  has  only 
in  a  limited  instance  expressly  and  explicitly  enacted  in  words 
what  the  Oregon  court  infers.  This  instance  is  in  an  act  of  Con- 
gress4 expressly  reserving  out  of  patents  and  denying  to  patentees 
any  riparian  rights  on  lands  granted  in  the  Black  Hills  Forest 
Reserves,  which  has  not  yet  been  under  judicial  consideration. 

These  arguments  base  the  Colorado  doctrine  upon  affirmative 
Federal  action. 

(3d  ed.) 

§  177.  Basis  upon  Absence  of  Federal  Action. — There  is.  in  a 
related  branch  of  the  law  of  waters,  namely,  the  law  of  accretion 
and  boundaries,  a  well-settled  rule  that,  in  the  absence  of  express 
Federal  provision  as  to  the  effect  of  patents  bounding  on  streams, 
the  local  law  governs  as  to  whether  the  boundary  carries  to  the 
middle  of  the  stream,  and  as  to  whether  it  includes  islands  in  the 
stream,  or  similar  matters.5  In  a  case  involving  title  to  an  island 
in  a  stream  in  Nebraska,  the  supreme  court  of  the  United  States 
said:6  "The  decision  of  the  supreme  court  of  the  State  was  that 
the  owner  of  lands  bordering  on  a  river  owns  to  the  center  of  the 
channel,  and  takes  title  to  any  small  bodies  of  land  on  his  side 
of  the  channel  that  have  not  been  surveyed  or  sold  by  the  govern- 
ment. It  is  the  settled  rule  that  the  question  of  the  title  of  a  ripa- 
rian owner  is  one  of  local  law.  In  Hardin  v.  Jordan,7  the  matter 
was  discussed  at  some  length,  the  authorities  cited,  and  the  conclu- 
sion thus  stated  by  Mr.  Justice  Bradley,  delivering  the  opinion  of 
the  court:8  'In  our  judgment  the  grants  of  the  governments  for 
lands  bounded  on  streams  and  other  waters,  without  any  reserva- 
tion or  restriction  of  terms,  are  to  be  construed  as  to  their  effect 
according  to  the  law  of  the  State  in  which  the  lands  lie.'  ' 

This  is  a  well-settled  rule  of  Federal  conveyancing  which,  as  a 
new  matter,  may  be  applicable  here,  although  this  line  of  author- 

3  "True,  it  cannot  by  legislation  de-  v.  Porter,  51  Or.  318,  95  Pac.  732,  98 

termine  for  any  State,  after  its  admis-  Pac.  1083,  102  Pac.  728. 

sion,  what   the  local  laws  relative   to  4  A.  C.  June  11,  1906,  34  Stat.  234. 

riparian  rights  shall  be;  but  the  gen-  5  Infra,  sec.  897  et  seq. 

eral   government,   in   dealing  with   its  6  Whitaker  v.   McBride,   197  U.   S. 

public   lands,   may   provide   for   their  510,  25  Sup.  Ct.  Rep.  530,  49  L.  Erl. 

transfer   as   might   any   other   landed  857. 

proprietor,  and  make  such  reservations  ?  140  U.  S.  371,  11   Sup.  Ct.  Rep. 

therefrom    by    grant,    dedication    or  808,  838,  35  L.  Ed.  428. 

otherwise  as  it  may  see  fit."     Hough  8  Page  384. 


§  178  Ck.  8.     THE   STATE  IN  COLORADO.  (3d  ed.)  211 

ities  has  never  found  its  way  into  decision  upon  the  present  sub- 
ject until,  within  the  last  year,  it  was  brought  in  by  a  decision  of 
the  supreme  court  of  the  United  States  specifically  applying  it  to 
diversions  of  water  from  a  riparian  proprietor.9 

Such  decision  does  not  affect  the  rights  of  the  land  (if  any) 
while  in  the  United  States ;  it  allows  the  State  to  subtract  the  water 
only  when  it  is  passing  from  the  United  States  to  the  patentee,  the 
State  acting  as  a  kind  of  agent  of  the  United  States  to  specify  the 
force  of  patents  which  themselves  are  silent.  It  would  seem  to  say 
that  the  right  to  unappropriated  waters  on  public  lands,  and  ulti- 
mate control  thereof,  is  in  the  United  States ;  that  the  United  States 
has  not  expressly  reserved  them  out  of  land  patents;  that  until 
Congress  explicitly  expresses  a  contrary  intention  in  its  patents, 
the  local  law  governs  the  effect  of  the  patent  as  concerns  water- 
rights  as  well  as  everything  else  concerning  the  land.  Besides  be- 
ing a  departure  from  the  historical  view  (in  that  it  permits  the 
local  law  to  say  that  the  pioneers  were  not  trespassers  and  that 
they  had  rights  against  patentees  by  force  of  local  law),  it  also 
has  the  unsatisfactory  result  that  when,  under  it,  the  local  law 
refuses  riparian  rights  to  patentees,  rights  in  waters  on  private  pat- 
ented land  remain,  until  appropriated,  in  the  United  States  equally 
with  waters  on  public  lands ;  a  kind  of  dual  ownership  of  the  pri- 
vate estate  shared  in  by  the  United  States.10  It  would  result  in 
a  power  in  Congress  to  legislate  in  Colorado  even  for  unused  waters 
on  private  land,  since  they  would,  under  this  theory,  be  reserved 
to  the  United  States  as  much  as  unappropriated  water  on  public 
land. 

(3d  ed.) 

§  178.  Basis  upon  State  Sovereignty  Alone. — But  the  prevail- 
ing attitude  under  the  Colorado  doctrine  to-day  wholly  passes  by  any 
question  of  Federal  proprietorship,  authorization  or  consent,  and 

*>  Los     Angeles     etc.     Co.     v.     Los  10  "It  has  never  been  the  policy  of 

Angeles    (1910)     217   IT     S     217,    30  the  Uniteci  states  to  possess  interests 

Sup.  Ct.  Rep.  452,  54  L.  Ed.  736,  af-  ,     1o    ,     .                                 ... 

firming   S.   C.,   152    Cal.   645,   93   Pac.  in     land     m     connection     with     mdi- 

869,    1135;    a   case    in    which    the   su-  viduals."    Moore  v.  Smaw,  17  Cal.  199, 

preme  court   of  California  had  itself  at   226,   79   Am.   Dec.    123,    12   Morr. 

applied    it     to     uphold     the     "pueblo  Min.  Rep.  418,  holding  that  there  is 

right      of    the   citv    of   Los    Angeles,  ,             „   .. 

against  a  riparian' owner.     See  supra,  (generally)     no     reservation     to     the 
Bee.  68.  United  States  of  mines  out  of  a  pat- 
See,   also.    Snvder   v.    Colorado   etc.  ent. 
Co.  (C.  C.  A.,  Colo.),  181  Fed.  62. 


212   (3d  ed.)     Pt.  II.     CALIFORNIA  -  COLORADO  DOCTRINES.  §  179 

regards  all  questions  as  resting  wholly  upon  the  sovereignty  of  the 
State  as  lawmaker,  having  power  to  declare  or  change  the  law  within 
the  State.  The  State  decisions  to  this  effect  have  already  been 
referred  to  at  length  and  need  not  be  here  repeated.11 

In  a  recent  case  in  the  Federal  court  for  Washington  (whose 
State  court  rejects  this  doctrine)  it  was  held  that  the  government  on 
admitting  a  State  into  the  Union  relinquishes  its  control  of  the 
disposition  of  the  waters  of  the  State,  except  in  so  far  as  the  regu- 
lation of  commerce  is  concerned,  and  it  was  said  that  if  act  of 
Congress  interferes  with  State  law,  the  act  of  Congress  is  invalid.12 
The  Secretary  of  the  Interior,  Mr.  Ballinger,  in  his  report  for  1909, 
said:  "If  the  Federal  government  desires  to  exercise  control  or 
supervision  over  water-power  development  on  the  public  domain, 
it  can  only  do  so  by  limitations  imposed  upon  the  disposal  of  power 
and  reservoir  sites  upon  the  public  lands,  the  waters  of  the  streams 
being  subject  to  State  jurisdiction  in  their  appropriation  and  bene- 
ficial use. ' ' 13 

Being  approved  by  the  supreme  court  of  the  United  States  as 
below  considered,  this  must  be  taken  as  a  permissible  doctrine 
to-day. 

(3d  ed.) 

§  179.     Some  Other  Arguments. — Incidentally,  other  arguments 

may  be  noticed.  When  the  general  adoption  of  the  common  law 
in  all  the  Western  States  is  referred  to,  it  is  replied  that  the  adop- 
tion of  the  common  law,  if  it  included  the  sanction  of  riparian 
rights,  is  subject  to  an  implied  reseryation  to  the  legislature  to 
revoke  the  recognition  thereof.14 

The  " argumentum  ad  hominem"  is  also  not  lacking.15  And 
in  some  quarters  it  is  customary  to-day  to  speak  disparagingly 

11  Supra,  sec.  168  et  seq.  Grande   River  by  treaty  between   the 

12  United  States  v.  Hanson   (Wash.  United  States  and  Mexico  may  be  "an 
1909),      167      Fed.      881.        Likewise  appropriation     by     the     highest     au- 
United     States     v.     Burley      (Idaho,  thority."     39  Land  Dec.  105,  at  108. 
1909),  172  Fed.  615.  "  Boquillas   etc.   Co.   v.   Curtis,   11 

13  However,  he 'then  took  the  posi-  Ariz.   128,  89   Pac.  504. 

tion  that  the  United  States  should  re-  i5  "The    California    decisions    cited 

capture  jurisdiction  by  purchase  from  for  appellants  may  no  longer  be  con- 

the  citizen ;  that  is,  require  the  owner  sidered   good   law    even   in   the   State 

of    water-rights    under    State  law  to  in  which  they  were  rendered.     In  the 

convey  them  to  the  United  States,  so  recent    case    of    Kansas    v.    Colorado, 

as   to   remove    them     from    the    State  before     the     supreme     court     of     the 

control.     Still  later   the   Interior  De-  United  States,  Congressman  Needham 

partment  threw  out  a  suggestion  that  testified  ....  that  there    has  been  a 

a   withdrawal   of   waters   of   the    Rio  departure    from    the    principles    laid 


§180  Ch.  8.     THE  STATE  IN  COLORADO.  (3d  ed.)  213 

of  "the  old  argument  that  supports  'vested  rights,'  ("  even  though 
the  constitution  so  demands. 

Finally,  the  stand  is  taken  that  the  rule  of  the  arid  States  is 
now  one  of  property,  upon  which  rights  of  the  highest  value  have 
become  established,  and,  right  or  wrong,  must  stand  as  a  rule  of 
property.16  Correspondingly,  the  Washington  court  refused  to  re- 
open the  correctness  of  its  decisions  following  the  California  doc- 
trine, also  on  this  ground.17  The  Nevada  court  (in  the  case  above 
cited)  also  suggested  that  the  statute  of  limitations  would  long  ago 
have  run  against  the  riparian  claimants.  The  idea  here  is  entirely 
similar  to  that  "silent  acquiescence"  which  was  relied  on  in  the 
original  California  cases  establishing  appropriation ;  such  consent 
of  the  United  States  it  being  necessary  to  presume  in  order  to  pro- 
tect private  rights  that  have  grown  up  to  a  great  value;  and  so  in 
Clark  v.  Nash,18  it  is  said  that  on  account  of  the  large  property 
interests  that  have  grown  up  under  the  Colorado  system,  it  must 
be  upheld.  A  recent  Colorado  writer  says:19  "In  all  of  the  arid 
States  following  the  '  Colorado  system, '  and  sustaining  the  doctrine 
of  appropriation  as  against  the  common-law  doctrine  of  riparian 
rights,  the  law  has  become  well  settled,  and  litigants  are  not  in- 
clined to  raise  nor  the  courts  to  listen  to  any  other  contention.  Its 
beneficent  results  have  now  been  demonstrated  by  more  than  thirty 
years  of  continuous  practice,  and  the  property  interests  that  have 
developed  under  it  now  amount  in  value  to  hundreds  of  millions  of 
dollars." 

(3d  ed.) 

§  180.  Views  of  the  Supreme  Court  of  the  United  States — First 
Period. — The  decisions  of  the  supreme  court  of  the  United  States 
up  to  Sturr  v.  Beck  had  been  based  upon  the  California  view,  since 
that  was  the  historical  view,  and  the  opinions  were  either  given 
by  Mr.  Justice  Field,  who  had  been  influential  in  shaping  the  law 

down  in  Lux  v.   Haggin,    because  at  ing  the  statement  made  in  the  quota- 

that  time  the  value  of  water  was  not  tion,  see  supra,  sec.  116. 

realized;    that   the   decision   has   been  16  Twaddle  v.  Winters,  29  Neb.  88, 

practically  reversed  by  the  same  court  85  Pac.  280,  89  Pac.  289 ;  Sternberger 

on     subsequent     occasions."     Twaddle  v.  Seaton  etc.  Co.  (1909),  45  Colo.  401, 

v.  Winters,  29  Nev.  88,  85  Pac.  280,  102   Pac.   168. 

89  Pac.  289.     The  counsel  who  had  as-  17  Nesalhous   v.   Walker,   45   Wash. 

serted  the  California  doctrine  was  ad-  621,  88  Pac.  1032. 

judged  in   contempt   of   court  in   an-  18  198  U.  S.  361,  25  Sup.  Ct.  Rep. 

other  case  just  prior  to  this  decision  676,  49  L.  Ed.  1085,  4  Ann.  Cas.  1171. 

for  some  expressions  used.     Concern-  19  Mills'    Irrigation    Manual. 


214  (3ded.)     Pt.  II.     CALIFORNIA  -  COLORADO   DOCTRINES.  §180 

as  Chief  Justice  of  California,  or  were  based  by  other  justices  on 
his  opinions.  They  deraigned  the  rights  of  an  appropriator  from 
the  proprietary  rights  of  the  United  States  as  riparian  proprietor 
of  the  public  lands,  under  the  Federal  policy  of  "free  develop- 
ment" of  the  public  domain.  In  Atchison  v.  Peterson20  in  the 
course  of  the  opinion  it  is  observed  that  "the  government  being 
the  sole  proprietor  of  all  the  public  lands,  whether  bordering  on 
streams  or  otherwise,  there  was  no  occasion  for  the  application  of 
the  common-law  doctrine  of  riparian  proprietorship  in  respect  to 
the  waters  of  those  streams" — meaning  the  streams  on  the  public 
lands,  the  waters  of  which  were  freely  appropriated  and  used  under 
the  customs  obtaining  among  miners  sanctioned  by  Congress  in  the 
act  of  1866,  but  which  did  not  extend  to  waters  on  private  land. 
In  Basey  v.  Gallagher  21  the  question,  as  stated  by  the  court,  was 
whether  a  right  to  running  waters  on  public  land  of  the  United 
States  for  the  purposes  of  irrigation  could  be  acquired  by  prior  ap- 
propriation, as  against  parties  not  having  the  title  of  the  govern- 
ment, and  the  court  held  that  it  could.  But  the  question  of  ripa- 
rian rights  was  not  in  the  case,  and  the  court  said  that:  "Neither 
party  has  any  title  from  the  United  States.  No  question  as  to 
the  rights  of  riparian  proprietors  can,  therefore,  arise.  It  will  be 
time  enough  to  consider  those  rights  when  either  of  the  parties  has 
obtained  a  patent  from  the  government."  In  Sturr  v.  Beck22  the 
question  as  to  the  rights  of  the  riparian  proprietor  as  against  an 
appropriator  of  the  water  did  arise,  and  was  determined  by  the 
court.  In  that  case  it  appeared  that  the  landowner  had  not  di- 
verted the  water  himself;  but  the  court  unanimously  held  that  his 
patent  (by  relation  back  to  the  date  of  his  homestead  filing)  pre- 
vailed over  the  water  appropriation  initiated  subsequent  to  the 
filing  upon  the  land.  The  Chief  Justice,  in  delivering  the  opinion 
of  the  court,  after  referring  to  the  act  of  Congress  of  July  26, 
1866,23  and  the  amendatory  act  of  1870,  and  •  quoting  from  the 
opinion  in  Atchison  v.  Peterson,  supra,  said:  "When,  however,  the 
government  ceases  to  be  the  sole  proprietor,  the  right  of  the  ripa- 
rian owner  attaches,  and  cannot  be  subsequently  invaded.  As  the 
riparian  owner  has  the  right  to  have  the  water  flow  ut  currere  sole- 
bat,  undiminished  except  by  reasonable  consumption  of  upper  pro- 

20  87  U.  S.  507,  22  L.  Ed.  414,  1  22  133  u.  S.  541,  10  Sup.  Ct.  Rep. 
Morr.  Min.  Rep.  583.  350,  33  L.  Ed.  761. 

21  20  Wall.   (87  U.   S.)    670,  22  L.  23  Rev.   Stats.,  sec.   2339. 
Ed.  452,  1  Morr.  Min.  Rep.  683. 


§  181  Ch.  8.     THE   STATE  IN  COLORADO.  (3d  ed.)  215 

prietors,  and  no  subsequent  attempt  to  take  the  water  only  can 
override  the  prior  appropriation  of  both  land  and  water,  it  would 
seem  reasonable  that  lawful  riparian  occupancy  with  intent  to  ap- 
propriate the  land  should  have  the  same  effect."  And  after  qu,ot- 
ing  certain  sections  of  the  Civil  Code  of  Dakota,  enacting  the  law 
of  appropriation  in  the  usual  form,  and  setting  out  the  local  custom 
of  diverting  and  appropriating  the  waters  on  public  land  for 
the  purpose  of  irrigation,  he  concluded  that  the  question  was 
"whether,  as  against  Sturr  [the  appropriator] ,  his .  [the  land- 
owner's] lawful  occupancy  under  settlement  and  entry  was  not  a 
prior  appropriation,  which  Sturr  could  not  displace.  We  have  no 
doubt  it  was,  and  agree  with  the  brief  and  comprehensive  opinion 
of  the  supreme  court  to  that  effect. ' ' 24 

This  line  of  decisions  deraigns  the  rights  of  the  appropriator 
from  the  United  States,  and  its  theory  is  based  upon  the  proprietary 
rights  of  the  United  States  as  landowner  of  the  public  lands  and 
of  its  land  grantees  as  its  successor  in  interest.  We  have  set  forth 
this  line  of  decisions,  or  the  "public  domain"  stage,  in  the  first 
historical  chapter. 

(3d  ed.) 

§  181.     Same — Second  Period. — But  the  decisions  since  Sturr 

v.  Beck  have  shown  a  clear  determination  to  uphold  the  Colorado 
doctrine  in  States  that  have  adopted  it.  The  first  step  in  this  direc- 
tion was  based  upon  the  new  construction,  above  stated,  of  the  early 
Federal  statutes.  From  United  States  v.  Rio  Grande  etc.  Co.1  we 
have  already  quoted  to  this  effect.  But  a  limitation  was  at  the 
same  time  stated,  which  points  to  the  California  doctrine.  "Al- 
though this  power  of  changing  the  common-law  rule  as  to  streams 
within  its  dominion  undoubtedly  belongs  to  each  State,  yet  two 
limitations  must  be  recognized:  First,  that  in  the  absence  of  spe- 
cific authority  from  Congress  a  State  cannot  by  its  legislation 
destroy  the  right  of  the  United  States,  as  the  owner  of  lands  bor- 
dering on  a  stream,  to  the  continued  flow  of  its  waters";  adding 
at  least  as  far  as  may  be  necessary  for  the  beneficial  uses  of 
the  government  property,  and  adding  a  second  limitation  where 
the  State  change  of  the  common  law  interferes  with  the  navi- 

24  See  Benton  v.  Johncox,  17  Wash.  1  174  U.  S.  690.  19  Sup.  Ct.  Bep. 

277,   61    Am.    St.   Rep.    912,   49    Pac.       770,  43  L.  Ed.  1136. 
498,  39  L.  R.  A.  107,  discussing  this 
line  of  the  decisions. 


216  (3ded.)     Pt.  II.     CALIFORNIA  -  COLORADO  DOCTRINES.  §181 

gability  of  a  navigable  stream.  In  Gutierres  v.  Albuquerque 
etc.  Co.2  the  same  view,  jesting  on  construction  of  the  early  Fed- 
eral statutes,  was  taken.  Counsel  for  appellant  had,  in  their  brief, 
brought  up  the  question  of  the  relation  of  appropriators  to  the 
State  or  to  the  United  States,  quoting  Lux  v.  Haggin,  and  in  this 
connection  the  following  passage  may  be  of  importance.  The  court 
said :  ' '  The  contentions  urged  upon  our  notice  substantially  resolve 
themselves  into  two  general  propositions :  First,  that  the  territorial 
act  was  invalid,  because  it  assumed  to  dispose  of  property  of  the 
United  States  without  its  consent ;  and,  second,  that  said  statute, 
in  so  far,  at  least,  as  it  authorized  the  formation  of  corporations 
of  the  character  of  the  complainant,  was  inconsistent  with  the  legis- 
lation of  Congress,  and  therefore  void.  These  propositions  natur- 
ally admit  of  consideration  together.  The  argument  in  support  of 
the  first  proposition  proceeds  upon  the  hypothesis  that  the  waters 
affected  by  the  statute  are  public  waters,  the  property,  not  of  the 
Territory  or  of  private  individuals,  but  of  the  United  States ;  that 
by  the  statute  private  individuals,  or  corporations,  for  their  mere 
pecuniary  profit,  are  permitted  to  acquire  the  unappropriated  por- 
tion of  such  public  waters,  in  violation  of  the  right  of  the  United 
States  to  control  and  dispose  of  its  own  property  wheresoever  sit- 
uated. Assuming  that  the  appellants  are  entitled  to  urge  the  ob- 
jection referred  to,  we  think,  in  view  of  the  legislation  of  Congress 
on  the  subject  of  the  appropriation  of  water  on  the  public  domain, 
particularly  referred  to  in  the  opinion  of  this  court  in  United  States 
v.  Rio  Grande  Dam  &  Irr.  Co.,3  the  objection  is  devoid  of  merit. 
As  stated  in  the  opinion  just  referred  to,  by  the  act  of  July  26, 
1866,4  Congress  recognized,  as  respects  the  public  domain,  'so  far 
as  the  United  States  are  concerned,  the  validity  of  the  local  cus- 
toms, laws,  and  decisions  of  courts  in  respect  to  the  appropriation 
of  water. '  ' ' 

But  in  this  case  the  court  takes  pains  to  point  out  that  the  rights 
of  riparian  proprietors  were  not  involved,  and  again  place  a  limit 
on  its  decision  which  resembles  the  California  doctrine.  This  pas- 
sage is  quoted  in  the  note,5  and  seems  an  express  reservation  that 

2  188  U.  S.  545,  23  Sup.  Ct.  Rep.  5  The   court   says:    "Of    course,   as 
338,  47  L.  Ed.  588.  held  in  the  Rio  Grande  case,  even  a 

3  174   U.   S.   704-706,   19   Sup.   Ct.  State,  as  respects  streams   within  its 
Rep.  770,  43  L.  Ed.  1142,  1143.  borders,  in  the  absence  of  specific  au- 

4  14  Stats,   at  Large,   253,   c.   262,  thority  from  Congress,  'cannot,  by  its 
sec.  9;  Rev.  Stats.  2339;  U.  S.  Comp.  legislation,    destroy   the   right   of   the 
Stats.  1901,  p.  1437.  United  States,  as  the  owner  of  lands 


§181  Ch.8.     THE  STATE  IN  COLORADO.  (3d  ed.)  217 

the  decision  shall  not  affect  the  question  of  riparian  rights,  and 
it  reasserts  the  proprietary  rights  of  the  United  States,  at  least  so 
far  as  concerns  government  reservations,  which  exception  has  been 
actually  enforced  with  regard  to  waters  flowing  through  an  Indian 
reservation.0 

There  are  two  other  decisions  of  the  supreme  court  of  the  United 
States  also  basing  the  Colorado  view  on  a  construction  of  the  early 
Federal  statutes.  Referring  to  these  statutes  it  is  said :  ' '  The  gov- 
ernment enacts  that  anyone  may  go  upon  its  public  lands  for  the 
purpose  of  procuring  water,  digging  ditches  for  canals,  etc.,  and 
when  rights  have  become  vested  and  accrued  which  are  recognized 
and  acknowledged  by  the  local  customs,  laws,  and  decisions  of 
courts,  such  rights  are  acknowledged  and  confirmed,"7  and  that 
hence  the  validity  of  appropriation  is  by  these  Federal  statutes 
made  a  question  of  State  law.8 

These  decisions,  consequently,  still  recognize  the  proprietary 
rights  of  the  United  States  as  involved  in  determining  the  rights 
of  an  appropriator ;  but  consider  that  Congress  itself  has  legislated 
inimically  to  riparian  rights.  They  also  either  uphold  a  latent 
power  in  Congress  to-day,  or  one  previously  existing  at  the  basis 
of  the  subject. 

bordering  on   a   stream,   to   the    con-  4  of  section  17  of  the  act  'That  no 

tinued  flow  of  its  waters;   so  far,  at  water    shall    be    diverted,    if    it    will 

least,   as   may   be   necessary    for    the  interfere  with  the  reasonable  require- 

beneficial     uses    of    the    government  ments  of  any  person  or  persons  using 

property';  and  the  power  of  a   State  or   requiring    the   same    when   so    di- 

over     navigable     streams     and     their  verted'     So,  also,  in  section  25,  it  is 

tributaries   is   further  limited  by   the  declared  'that  no  incorporation  of  any 

superior  power  of  the  general  govern-  company  or  companies  shall  interfere 

ment  to  secure  the  uninterrupted  navi-  with  the  water-rights  of  any  individual 

gability     of     all     navigable     streams  or  company  acquired  prior  to  the  pas- 

within  the  limits  of  the  United  States.  sage  of  this  act.'     The  -finding  of  the 

Necessarily,      these      limitations      are  court   below   that   'surplus'   water  ex- 

equally     applicable     in     restraint     of  isted  negates  the  idea  that  any  legiti- 

the  legislative  branch  of  a  territorial  mate    appropriation    of    water    which 

government,     controlled,    as    is    such  can  be  made  by  the  appellee  can  in 

body,    by    Congress.     If    we  assume  any  wise  violate  the  rights  of  others." 

that  a  restriction  on  the  power  of  a  6  Winters  v.  United  States,  207  U. 

Territory  similar  to  that  first  stated  S.   564,  28   Sup.  Ct.  Rep.   208,  52  L. 

prevails  in  favor  of  private  owners  of  Ed.  340.     Infra,  sec.  207. 

lands  along  a  running  stream,  the  act  7  Bear   Lake    etc.    Co.    v.    Garland, 

in  question  clearly  is  not  violative  of  164  U.  S.  1,  17  Sup.  Ct.  Rep.  7,  41  Ix 

such  rights,  for  the  same  does  not  at-  Ed.  327.     Italics  ours. 

tempt  to  authorize  an  infringement  of  8  Telluride  etc.   Co.   v.   Rio  Grande 

them.     The  water  which  it  is  provided  etc.   Co.,  175  U.   S.   639,   20  Sup.   Ct. 

may  be  appropriated  is  'surplus'  water,  Rep.  245.  44  L.  Ed.  305,  187  U.  S.  579, 

of  any  stream,  lake,  or  spring,  and  it  23  Sup.  Ct.  Rep.  178,  47  L.  Ed.  307. 
is  specifically  provided  in  subdivision 


218  (3d  ed.)     Pt.  II.     CALIFORNIA  -  COLORADO  DOCTRINES.  §  182 

(3d  ed.) 

§  182.  Same — Third  Period. — The  latest  cases  in  this  highest 
tribunal  look  to  the  support  of  the  Colorado  doctrine,  not  as  a 
matter  of  construction  of  the  Federal  statutes  (as  in  the  foregoing 
decisions),  but  adopting  the  full  contention  of  the  cases  at  large  in 
the  arid  States,  passing  by  these  statutes  and  the  question  of  Fed- 
eral proprietorship,  and  regarding  State  control  over  the  law  of 
waters  as  a  power  inherent  in  its  sovereignty,  whether  the  waters 
now  or  in  the  past  flowed  over  public  lands  or  not.  To  this  effect 
is  Clark  v.  Nash,  saying  (by  way  of  dictum  only,  since  a  point  in 
the  law  of  eminent  domain  alone  was  decided)  :  "The  rights  of  a 
riparian  owner  in  and  to  the  use  of  the  water  flowing  by  his  land 
are  not  the  same  in  the  arid  and  mountainous  States  of  the  West 
that  they  are  in  the  States  of  the  East.  These  rights  have  been 
altered  by  many  of  the  Wes'tern  States  by  their  constitutions  and 
laws,  because  of  the  totally  different  circumstances  in  which  their 
inhabitants  are  placed,  from  those  that  exist  in  the  States  of  the 
East,  and  such  alterations  have  been  made  for  the  very  purpose 
of  thereby  contributing  to  the  growth  and  prosperity  of  those 
States,  arising  from  mining  and  the  cultivation  of  an  otherwise 
valueless  soil,  by  means  of  irrigation.  This  court  must  recognize 
the  difference  of  climate  and  soil,  which  render  necessary  these 
different  laws  of  the  States  so  situated. ' ' 9 

To  the  same  effect,  treating  the  question  as  one  of  sovereignty 
of  the  State  as  lawmaker  and  passing  by  any  consideration  of  the 
position  of  the  United  States  as  landowner ;  regarding  the  question, 
in  other  words,  as  one  of  sovereignty  and  not  of  proprietorship, 
is  the  opinion  in  Kansas  v.  Colorado.10  This  very  important  deci- 
sion was  given  May  13,  1907,  Mr.  Justice  Brewer  writing  the 
opinion.  In  actual  decision  it  held  against  the  Federal  claims  set 
up  in  behalf  of  the  Reclamation  Service,  holding  that  the  rights  of 
sovereignty  of  the  United  States  with  respect  to  the  public  domain 
within  States  are  subordinate  to  State  sovereignty  with  respect  to 
the  law  of  waters,  and  rejected  the  Federal  claim  as  one  of  sov- 
ereignty not  delegated  to  it  expressly  by  the  Federal  constitution, 
and  the  Federal  government  is  one  of  enumerated  powers  only. 
Federal  rights  were  considered  entirely  from  the  view  of  sov- 

9  Clark  v.  Nash,  198  U.  S.  361,  25  10  206  U.  S.  46,  27  Sup.   Ct.  Rep. 

Sup.  Ct.  Rep.  676,  49  L.  Ed.  1085,  4       655,  51  L.  Ed.  956. 
Ann.  Cas.  1171. 


§  182  Ch.  8.     THE  STATE  IN  COLOEADO.  (3d  ed.)  219 

ereignty  and  as  such  recognized  as  to  Territories  but  denied  as  to 
States. 

No  reference  whatever  was  made  to  Federal  rights  on  the  ground 
of  proprietorship;  Federal  rights  based  on  proprietorship  aside 
from  sovereignty  were  given  no  consideration ;  or  rather,  the  dis- 
tinction at  the  bottom  of  Lux  v.  Haggin,  between  the  United  States 
as  landowner  on  one  hand,  and  lawmaker  on  the  other,  was  not 
made  a  part  of  the  opinion.  Viewing  the  rights  of  the  United 
States  solely  from  the  point  of  view  of  sovereignty  it  was  held: 
"But  it  is  useless  to  pursue  the  inquiry  further  in  this  direction. 
Jt  is  enough  for  the  purpose  of  this  case  that  each  State  has  full 
jurisdiction  over  the  lands  within  its  borders,  including  the  beds 

of  streams  and  other  waters It  may  determine  for  itself 

whether  the  common-law  rule  in  respect  to  riparian  rights  or  that 
doctrine  which  obtains  in  the  arid  regions  of  the  West,  of  the  ap- 
propriation of  waters  for  the  purposes  of  irrigation,  shall  control. 
Congress  cannot  enforce  either  rule  upon  any  State. ' '  Adding  that 
the  power  of  the  State  to  legislate  upon  waters  was  an  incident  to 
the  full  sovereignty  with  which  it  was  admitted  into  the  Union,  and 
that  the  Federal  legislation,  after  all,  was  merely  a  recognition  of 
this  lack  of  jurisdiction.11 

There  are,  upon  related  questions,  decisions  of  the  supreme  court 
of  the  United  States  to  the  same  general  effect  as  Kansas  v.  Colo- 
rado. They  had  not  been  before  applied  to  this  subject,  because 
they  were  upon  matters  having  a  different  history,  unconnected 
with  the  development  of  the  law  of  the  public  domain  in  California 
up  to  the  act  of  1866.12 

11  Referring  specially  to  the  proviso  may    be    said,    primarily,    among    the 
in  the   National   Irrigation   Act.     See  incidents  of  that  equality  is  the  right 
especially   the   provisos   quoted   infra,  to   make  improvements   in   the   rivers, 
sec.  1429.  watercourses    and    highways    situated 

12  Such  are  the  cases  following  Pol-  within  the  State." 

lard  v.  Hagan  (infra,  sec.  898  et  Such,  also,  are  the  cases  regarding 
seq.)  regarding  the  title  to  the  beds  the  regulation  of  wild  game.  In 
of  streams,  and  their  improvement.  Ward  v.  Race  Horse,  163  U.  S.  504, 
For  example,  a  frequently  cited  case  16  Sup.  Ct.  Rep.  1076,  41  L.  Ed.  244, 
is  Withers  v.  Buckley,  61  U.  S.  (20  holding  that  Wyoming's  right  to  regu- 
How.)  84,  15  L.  Ed.  816,  saying:  late  hunting  upon  the  public  lands 
"Clearly  Congress  could  exact  of  the  prevails  over  a  treaty  between  the  In- 
new  State  the  surrender  of  no  attri-  dians  and  the  United  States,  even 
bute .  inherent  in  her  character  as  a  though  the  treaty  was  made  before 
sovereign  independent  State  or  indis-  Wyoming's  admission,  it  was  said : 
pensable  to  her  equality  with  her  sis-  "The  power  of  all  the  States  to  regu- 
ter  States,  necessarily  implied  and  late  the  killing  of  game  within  their 

fuaranteed  by  the  very  nature  of  the  borders   will   not  be   gainsaid;   yet   if 

ederal    compact.     Obviously,    and    it  the   treaty  applies  to   the  unoccupied 


220  (3ded.)     Pt.  II.     CALIFORNIA  -  COLORADO  DOCTRINES.  §183 

Aside  from  the  claims  of  the  Reclamation  Service,  the  court  in 
Kansas  v.  Colorado  refused  to  decide  the  issue  on  the  law  of  waters. 
Kansas,  as  a  State  where  the  law  of  riparian  rights  was  in  force, 
sought  to  enjoin  Colorado  from  itself  diverting,  and  permitting 
private  appropriators  to  divert,  in  Colorado,  the  waters  of  the 
Arkansas  River,  which  flowed  from  Colorado  into  Kansas,  and  the 
decision  as  between  the  two  States  was  merely  that  Kansas  had 
not  shown  such  irreparable  damage  as  is  requisite  for  injunction; 
thereby  deciding  a  principle  of  equity  between  States  ("equitable 
apportionment  of  benefits  between  States"),  as  transcending  the 
question  of  the  validity  of  the  Colorado  system  of  water  laws.13 

(3d  ed.) 

§  183.     Same. — Since  Kansas  v.  Colorado  there  have  been  a 

number  of  decisions  in  the  supreme  court  of  the  United  States 
bearing  upon  the  question. 

In  Hudson  W.  Co.  v.  McCarter  a  State  statute  prohibiting  the 
diversion  of  a  stream  to  a  point  outside  the  State  was  upheld  on 
the  ground  that  the  power  of  a  State  to  legislate  upon  waters, 
within  limits,  outweighs,  under  the  police  power,  all  property  rights 
therein.  The  case,  however,  arose  in  New  Jersey  and  Mr.  Justice 
Holmes  said:  "The  problems  of  irrigation  have  no  place  here."14 

A  later  case  in  the  supreme  court  of  the  United  States  has  de- 
cided unequivocally  in  support  of  the  Colorado  doctrine,  in  actual 
decision,  against  a  riparian  proprietor.  In  Boquillas  etc.  Co.  v. 

land  of  the  United  States  in  the  State  None   of  these  lines   of  cases   had 

of  Wyoming,  that  State  .would  be  be-  that  peculiar  origin  which  shaped  the 

reft   of   such   power,   since   every   iso-  theory   of  the   California    doctrine   of 

lated  piece  of  land  belonging  to  the  water  law;     that  is,    the    controlling 

United  States  as  a  private  owner,  so  force  of  the  contention  made  against 

long  as  it  continued  to  be  unoccupied  the  California  pioneers  that  they  were 

land,  would  be  exempt  in  this  regard  trespassers    upon    the    public    lands, 

from    the     authority     of     the     State.  (Supra,  sees.  83,  88.) 

Wyoming,   then,   will   have    been   ad-  is  Indeed,    in   thus    looking   to   an 

mitted  into  the  Union,  not  as  an  equal  "equitable     apportionment"      between 

member,  but  as  one  shorn  of  a  legis-  the  two  States,  it  might  be  said  that 

lative   power  vested   in   all   the   other  the  law  actually  applied  is  the  same  as 

States  of  the  Union,  a  power  resulting  under    the    common    law    of    riparian 

from  the  fact  of  statehood  and  inci-  rights,   since   an   equitable   apportion- 

dent  to  its   plenary  existence."  ment,  as  distinguished  from  exclusive 

Such,    also,  is    Ohio  Oil  Co.  v.  In-  prior  taking,  is  the  common-law  rule, 

diana,  177  U.  S.  190,  20  Sup.  Ct.  Rep.  Infra,  sec.  751,  apportionment. 

576,   44   L.    Ed.    729,   20   Morr.   Min.  14  Hudson  W.  Co.  v.  McCarter,  209 

Rep.  466,  holding  that  the  State  may  U.  S.  349,  28   Sup.  Ct.  Rep.   529,  52 

regulate  the  use  of  percolating  water.  L.  Ed.  828,  14  Ann.  Cas.  560.     That 

Lindsley  v.  Natural  Carbonic  etc.  Co.  is,  problems  of  public  land  law. 
(1911),  31  Sup.  Ct.  Sep.  337. 


§  184  Ch.  8.     THE  STATE  IN  COLORADO.  (3d  ed.)  221 

Curtis,  in  an  opinion  by  Mr.  Justice  Holmes,15  it  was  held  unneces- 
sary to  declare  how  far  a  State  may  abrogate  the  common  law  of 
riparian  rights  after  once  established,  but  it  was  firmly  decided 
that  it  had  never  become  established  in  Arizona.  Being  unsuited 
to  conditions  there,  it  was  held  to  have  been  disregarded  from 
Arizona's  first  settlement,  and  hence  not  adopted  by  the  Arizona 
statute  adopting  the  common  law  in  general  terms.  As  to  such 
adoption  of  the  common  law  generally,  "It  is  far  from  meaning 
that  the  patentees  of  a  ranch  on  the  San  Pedro  are  to  have  the 
same  rights  as  owners  of  an  estate  on  the  Thames."  Having  been 
acted  upon  from  the  first  settlement,  and  declared  by  the  terri- 
torial court,  the  rejection  does  not  depend 'on  the  Arizona  statute 
subsequently  enacted  to  that  express  effect,  whether  such  subse- 
quent legislation  would  be  otherwise  valid  or  not. 

The  case  is  an  unequivocal  decision  in  support  of  the  Colorado 
doctrine  so  far  as  it  affects  the  rights  of  riparian  proprietors. 
Although  it  does  not  directly  deal  with  the  Colorado  doctrine  as 
regards  the  relative  rights  of  the  State  and  the  United  States,  it 
inferentially  also  upholds  the  view  that  the  law  of  waters  even 
on  public  lands  rests  with  the  State,  since,  if  riparian  rights  do 
not  exist,  the  United  States  has  no  more  right  to  waters  on  its  lands 
than  other  landowners. 

Another  actual  decision  upholding  local  law  allowing  diversion 
from  a  riparian  owner  was  rendered  in  Los  Angeles  Milling  Co.  v. 
Los  Angeles,  already  stated.16 

In  Rickey  etc.  Co.  v.  Miller  etc.  Co.,17  involving  an  interstate 
stream  partly  upon  public  land,  the  reasoning  of  Kansas  v.  Colo- 
rado was  followed  up,  and  it  was  held  that  rights  thereon  depend 
upon  the  sovereign  will  of  each  State,  and  that  only  by  the  con- 
current action  of  both  States  could  rights  be  recognized  beyond  the 
boundary  of  either  one.18 

(3d  ed.) 

§  184.  Same. — These  decisions  still  leave  some  uncertainty, 
however.  In  the  matter  of  riparian  proprietors,  in  both  the  Boquil- 
las  case  and  the  Los  Angeles  Milling  case  special  point  was  made 

15  (1909)    213    U.  S.  339,  29  Sup.      Ct.   Rep.    452,    54   L.    Ed.    736.     See 
Ct.  Rep.  493,  53  L.  Ed.  822,  on  appeal      supra,  sec.  177. 

from  Arizona   (11  Ariz.  128,  89  Pac.  "  218  U.  S.  258,  31  Sup.  Ct.  Rep. 

505).  11. 

16  (1910)    217    U.  S.    217,  30  Sup.          is  Infra,  sec.  340  et  seq. 


222   (3ded.)     Pt.  II.     CALIFORNIA  -  COLORADO   DOCTRINES.  §184 

of  the  fact  that  the  riparian  owner  claimed  under  a  Mexican  grant 
and  not  under  a  United  States  patent,  and  the  court  in  both  cases 
held  that  this  made  it  unnecessary  to  pass  upon  the  rights  of 
Federal  patentees.  In  that  regard,  Sturr  v.  Beck 19  was  cited 
but  not  overruled.20  Moreover,  one  recent  case  expressly  declined 
to  pass  upon  whether  riparian  rights  exist  in  Montana ;  21  and  the 
Boquillas  case  carefully  avoided  saying  how  far  a  State  statute 
could  abrogate  the  common  law  of  waters  if  once  in  force  (having 
only  held  that  in  Arizona  it  was  never  in  force). 

They  further  leave  some  uncertainty  in  the  question  of  the 
rights  of  the  United  States  as  riparian  landowner.  The  Boquillas 
case,  while  saying  that  the  State  law  alone  determines  the  law  of 
waters,  yet  says  that  the  Oregon  case  of  Hough  v.  Porter,  above 
considered,  was  decided  "on  plausible  grounds,"  which  grounds 
were  that  riparian  rights  had  been  abrogated  by  Congress  and  not 
by  the  State.22  Then  again,  the  Los  Angeles  Milling  case,  holding 
the  question  of  private  riparian  rights  to  be  merely  one  of  con- 
struction of  Federal  patents  when  they  are  silent  as  to  the  water, 
.  might,  it  would  seem,  impose  no  obligation  on  the  United  States 
to  remain  silent  in  the  future.  Moreover,  Kansas  v.  Colorado  itself, 
although  the  language  of  the  opinion  is  very  strong  in  upholding 
the  view  of  the  plenary  legislative  power  of  a  State  over  waters, 
as  an  incident  of  sovereignty,  without  resort  to  (in  fact,  if  need 
be,  in  spite  of)  any  Federal  statutes,  or  Federal  consent,  yet 
in  final  decision  did  not  pass  upon  the  effect  of  the  Colorado 
laws,  but  left  that  open  to  later  litigation  if  Kansas  could  here- 
after show  sufficient  damage.  It  is  not  conclusive  because  it  con- 
sidered the  matter  as  an  original  one,  without  historical  considera- 
tion of  its  origin  and  development,  and  because  in  Winters  v. 
United  States23  the  supreme  court  of  the  United  States,  while  hold- 
is  133  U.  S.  541,  10  Sup.  Ct.  Rep.  Beck.  But  these  later  cases  seem  to 
350,  33  L.  Ed.  761.  show  that  the  court  reserves  the  ques- 

20  In  Hough  v.  Porter,  51  Or.  318,  tion  regarding  Sturr  v.  Beck.  It  must 
95  Pac.  732,  98  Pac.  1089,  102  Pac.  be  remembered  that  Kansas  v.  Colo- 
729,  it  is  said:  "This  opinion  [in  rado  did  not  refer  to  Sturr  v.  Beck, 
Kansas  v.  Colorado]  was  written  by  nor  to  any  of  the  earlier  decisions  of 
Mr.  Justice  Brewer,  who  was  not  a  that  period. 

member  of  the  court  when  the  case  of  21  Winters  v.  United  States,  207  U. 

Sturr  v.  Beck  was  argued  and  sub-  S.  564,  28  Sup.  Ct.  Rep.  208,  52  L.  Ed. 
mitted,  for  which  reason,  although  a  340. 

member  of  the  court  when  the  opin-  22  Supra,  sees.    129,   130. 

ion   in   the   latter   case   was   filed,   he  23  207  U.  S.  564,  28  Sup.  Ct.  R«p. 

took  no  part  in  the  decision,"  and  it  208,  52  L.  Ed.  340.  See,  also,  United 
is  said  that  the  Kansas-Colorado  case  States  v.  Burley  (C.  C.  A.,  Idaho, 
in  effect  "brushes  aside"  Sturr  v.  1910),  179  Fed.  1. 


§  185  Ch.  8.     THE  STATE  IN  COLOEADO.  (3d  ed.)  223 

ing  it  unnecessary  to  decide  whether  riparian  rights  exist  in  Mon- 
tana, again  returned  to  the  reasoning  of  the  California  doctrine 
denying  the  plenary  power  of  the  State.  "The  power  of  the  gov- 
ernment to  reserve  the  waters  and  exempt  them  from  appropriation 
under  the  State  laws  is  not  denied,  and  could  not  be."  To  this 
Mr.  Justice  Brewer,  who  wrote  the  opinion  in  Kansas  v.  Colorado, 
was,  of  course,  forced  to  dissent.  And  in  actual  decision  this  and 
other  recent  cases  uphold  water-rights  similar  to  common-law 
riparian  rights,  in  the  United  States,  as  to  waters  on  Indian  reser- 
vations.24 

In  view  of  these  cases,  the  attitude  of  the  supreme  court  of  the 
United  States  is  to  uphold  the  Colorado  view  in  any  State  that 
has  so  far  adopted  it;  but  these  decisions  are  not  yet  reconciled 
with  the  early  ones  up  to  Sturr  v.  Beck ;  and  the  theory  of  the  law 
in  Lux  v.  Haggin  still  remains  unanswered.  The  test  will  prob- 
ably come  with  regard  to  States  which  have  gone  over  from  one 
doctrine  to  the  other  recently,  or  which  do  so  hereafter;  or  in 
regard  to  the  enforcement  of  the  policy  of  "conservation  of  nat- 
ural resources,"  should  Congress  attempt  to  legislate  upon  waters 
in  connection  with  that  subject.25 

(3d  ed.) 

§  185.  Some  Inconsistencies  and  Variations. — There  are  some 
dicta  in  the  arid  States  following  the  California  view  so  far  as  it 
holds  appropriation  to  rest  in  grant  from  the  United  States,1  though 

24  Infra,  sec.  207.     Judge  Simeon  E.  conduct    of    her    public     schools    with 
Baldwin   (now  governor  of  Connecti-  regard  to  the  admission  of  Japanese 
cut)     finds    considerable    occasion    to  therein.     The  supreme  court  (and  Mr. 
criticise    Kansas    v.    Colorado    in    an,  Justice       Brewer       especially)       was 
article    in    18    Yale   Law   Journal,   8.  thought  to  be  out    of  sympathy  with 
It  does  not   appear  that  Mr.  Justice  the    President's    centralization     prin- 
White  or  Mr.  Justice   McKenna  con-  ciples,  and  the  Kansas-Colorado  deci- 
curred   in  'the    opinion   in    Kansas   v.  sion  is  meant  to  be  in  favor  of  "State 
Colorado;  and  it  appears   (page  118)  rights."     So  far  as  title  questions  in- 
that  Mr.  Justice  Moody  did  not  wholly  volve     other    considerations    of    pro- 
concur,  prietorship    askle    from    sovereignty, 

25  The  opinion  in  Kansas  v.   Colo-  it  may  be  that  the  historical  ground 
rado   was   intended   to   lay   down   the  takes  the  water  question  (so  far  as  it 
position  of  the  supreme  court  of  the  is  viewed  as  purely  a  legal  one)   out 
United  States  toward  Mr.  Roosevelt's  of  the  "State   rights"   discussion;    al- 
"New   Nationalism,"   which   was   then  though  when  Federal  control   of   dis- 
;just  making  its  beginning  in  such  mat-  tribution  of  water  or  power  to  public 
ters  as  his  advocacy  of  Federal  con-  uses    is    brought   in,    that    separation 
trol  of  insurance,  railways,  forests  and  cannot  be  contended  for. 

(in  Kansas  v.   Colorado)    waters;   Ms  l  E.  g.,  Welch  v.  Garrett,  5  Idaho, 

attempt    to    exercise    State    functions  639,  51  Pac.  405,  19  Morr.  Min.  Rep. 

indirectly  by  the  Federal  treaty-mak-  193;   Le  Quime  v.  Chambers    (1908), 

ing  power,  coercing  California  in  the  15  Idaho,  405,  98  Pac.  415. 


224  (3d  ed.)     Pt.  II.     CALIFORNIA  -  COLORADO  DOCTRINES. 


§185 


usually  it  is  seen  that  this  leads  to  difficulty  under  the  Colorado 
view.  Again,  there  are  a  few  decisions  in  these  jurisdictions 
applying  the  California  view  and  enforcing  riparian  rights.2 

Under  a  very  recent  case  in  Idaho,  riparian  proprietors  have 
common-law  rights  of  continuous  flow  which  the  courts  will  en- 
force against  a  "mere  interloper"  or  diverter  who  has  not  com- 
plied with  the  legal  requirements  for  securing  a  valid  appropria- 
tion, or  who  is  only  wasting  the  water.3 

In  Colorado,  as  hereinafter  discussed  in  considering  "preferences 
and  pro-rating, ' '  it  seems  to  be  the  law  of  the*  State  court  that 
the  common  law  of  riparian  rights  governs  so  far  as  the  use  of 
water  for  domestic  purposes  is  concerned.4  Again,  the  very  earliest 
statutes  of  several  of  these  States  contained  a  provision  that  all 
landowners  on  the  banks  of  a  stream  have  a  right  to  the  use  of 
the  water.  This  was  probably  intended  as  declaratory  of  riparian 
rights,  to  the  same  end  as  the  California  provision,  "The  rights 


2  Thus,  Schwab  v.  Beam,  elsewhere 
quoted   (sees.  366,   367),  in  the  Fed- 
eral court  for  Colorado,  and  the  fol- 
lowing in  the  Supreme  Court  of  Utah^ 
saying   that    after   an   entry   of   land 
by  plaintiff's  grantors  "there  could  be 
no  appropriation  of  the  water  or  right 
of  way  for  the  ditch  across  plaintiff's 
land  without  his  consent  or  that  of  his 
grantors.     The   entry   of  the  land  by 
plaintiff  was  an  appropriation  of  not 
only  the  land,  but  of  the  water;  and 
any    person    entering    upon  the    land 
thereafter      became      a     trespasser." 
Stalling   v.    Ferrin,    7   Utah,   477,    27 
Pac.   686     (citing  Sturr  v.  Beck,   133 
U.  S.  541,  10   Sup.   Ct.  Rep.  350,  33 
L.  Ed.  761).     See,  also,  Willow  Creek 
Co.   v.   Michaelson,   21   Utah,   248,   81 
Am.    St.    Rep.    687,    60   Pae.   943,   51 
L.  R.  A.  280. 

3  Hutchins'on    v.     Watson    D.     Co. 
(1909),   16   Idaho,   484,   133   Am.   St. 
Rep.    125,    101   Pac.    1059     (granting 
relief).     See,     also,    "Sternberger     v. 
Seaton  etc.  Co.   (1909),  45  Colo.  401, 
102  Pac.  168,  dictum,  but  refusing  re- 
lief. 

The  Idaho  case  says:  "This  court 
has  on  several  occasions  recognized 
some  of  the  incidental  common-law 
rights  of  riparian  ownership  in  cases 
where  those  rights  do  not  come  in  con- 
flict with  the  rights  of  appropriators. 
This  was  the  case  in  Small  v.  Harring- 
ton, 10  Idaho,  499,  79  Pac.  461,  and 


Powell  v.  Springston  Lumber  Co.,  12 
Idaho,  723,  88  Pac.  97,  wherein  we 
recognized  and  sustained  the  rights  of 
riparian  proprietors  to  employ  such 
means  as  might  be  necessary  to  obtain 
ingress  and  egress  to  and  from  the 
waters  of  navigable  streams.  In 
Shephard  v.  Coeur  d'Alene  Lumber  Co. 
(1909),  16  Idaho,  293,  101  Pac.  591, 
it  was  held  that  the  right  of  ingress 
and  egress  to  and  from  the  lands  of  a 
riparian  owner  is  a  property  right, 
and  must  be  respected,  and  for  the 
protection  of  which  the  courts  will 

afford  a  remedy But  a  riparian 

owner  still  retains  such  right  to  have 
the  waters  flow  in  the  natural  stream 
through  or  by  his  premises  as  he  may 
protect  in  the  courts  as  against  per- 
sons interfering  with  the  natural  flow, 
or  who  attempted  to  divert  or  cut  off 
the  same  wrongfully  and  arbitrarily, 
and  without  doing  so  under  any  right 
of  location,  appropriation,  diversion 
or  use,  and  who  do  not  rest  their 
right  to  do  so  upon  any  right  of  use 
or  appropriation.  In  other  words,  a 
stranger  to  the  use  and  right  of  use 
of  such  waters  for  the  time  being  can- 
not interfere,  and,  if  he  does,  the 
riparian  owner  has  his  remedy  to  re- 
strain and  enjoin  such  interference." 
Hutchinson  v.  Watson  D.  Co.  (1909), 
16  Idaho,  484,  133  Am.  St.  Rep.  125, 
101  Pac.  1059. 
4  See  infra,  see.  308. 


§  186  Ch.  8.     THE  STATE  IN  COLORADO.  (3d  ed.)  225 

of  riparian  proprietors  are  not  affected  by  the  provisions  of  this 
title. ' '  Such  a  statute  existed  in  other  States,  where  it  is  construed 
as  only  declaratory  of  riparian  rights,  and  is  held  to  force  the 
court  to  follow  the  California  doctrine.5 

On  the  other  hand,  the  California  court  has  recently  used  ex- 
pressions similar  to  those  of  the  Colorado  court  as  to  the  question 
being  one  of  sovereignty,  irrespective  of  public  land  law,6  and 
similar  inconsistencies  appear  occasionally  in  decisions  of  the 
Federal  courts  in  jurisdictions  whose  State  courts  have  followed 
the  California  or  historical  rule.7  Moreover,  the  California  legis- 
lature this  year  has  declared  waters  the  property  of  the  people  of  the 
State. 

The  Oregon  court  has  recently,  after  able  consideration,  departed 
from  the  California  rule  and  taken  a  stand  intermediate  between 
the  two  doctrines.8 

And,  finally,  the  decisions  of  the  supreme  court  of  the  United 
States  have  not  yet,  in  all  points,  chosen  between  the  two  theories, 
although  strongly  predominating  in  favor  of  State  power  and 
against  common-law  riparian  rights. 

(3d  ed.) 

§  186.  .Conclusion. — The  Western  States  are  divided  into  two 
classes,  one  basing  its  theories  on  the  proprietorship  of  the  United 
States  in  the  public  domain,  deraigning  the  right  of  the  appro- 
priator  as  a  grant  from  the  United  States,  confining  appropriation 
to  waters  upon  public  lands,  and  recognizing  the  common  law  of 
riparian  rights  for  waters  flowing  over  lands  that  have  become 
private  before  a  diversion;  the  other  deriving  the  rights  of  the 
appropriator  from  the  State,  and  recognizing  no  law  of  waters 

5  Supra,  sec.   119.'  California  tendency  to  the  same  effect 

6  See  Duckworth  v.  Watsonville  W.  until    the    contrary    was     settled    by 
Co.,  150  Cal.  520,  89  Pac.  338;  Katz  Judge     Field     in     Moore     v.     Smaw 
v.    Walkinshaw,     141   Cal.    116;    Los  (supra,  sec.  82).     Likewise,  in  Wash- 
Angeles  v.  Los  Angeles  etc.  Co.,  152  ington,    while    the    State     court    says 
Cal.  645,  93  Pac.  869,  1135,  the  last  waters  on  Federal  lands  are  "utterly 
saying    the    whole    question    of    the  beyond  the  power  and  control  of  State 
rights   of   riparian   owners   is   one   of  legislatures"    (supra,    sees.    152-154), 
local  law.     Affirmed  in  217  U.  S.  217  o'n  the  other  hand  the  Federal  court 
H910).  30  Sup.   Ct.  Eep.  452,  54  L.  for  Washington  has  recently  held  that 
Ed.  736.  the  Federal  government,  on  admitting 

7  Appropriator    derives    his    rights  a   State   into   the   Union,   relinquishes 
from   the    State   of    California    (die-  its    control    over    the    disposition   of 
turn).     San     Diego    Co.    v.     National  waters  to  the  State.     United  States  v. 
City,  74  Fed.  79.     In  this  connection  Hanson   (Wash.  1909),  167  Fed.  881. 
there  should  also  be  noted  the    early  8  Supra,  sec.  129. 

Water  Eights — 15 


226  (3ded.)     Pt.  II.     CALIFORNIA- COLORADO  DOCTRINES.  §186 

but  that  of  prior  appropriation.  The  former,  the  California  and 
historical  doctrine,  is  in  force  in  California,  Kansas,  Montana, 
Nebraska  (partially),  North  Dakota,  Oklahoma  (possibly),  Oregon 
(partially),  South  Dakota,  Texas  (partially),  and  Washington. 
The  latter,  the  Colorado  doctrine,  is  in  force  in  Alaska,  Arizona, 
Colorado,  Idaho,  Nebraska  (partially),  Nevada,  New  Mexico,  Ore- 
gon (partially),  Texas  (partially),  Utah,  and  Wyoming.9 

The  doctrine  of  the  latter  States  is  that  the  question  is  one  of 
local  law,  becoming  such  by  a  construction  of  the  Federal  statutes 
which  departs  from  the  history  of  those  statutes  but  is  otherwise 
possible;  or  becoming  a  matter  of  local  law  as  inhering  in  State 
sovereignty  regardless  of  Federal  statutes,  a  position  which  the 
courts  following  the  California  doctrine  have  attacked  as  open  to 
constitutional  objections,  but  which  (without  considering  the  ob- 
jections) finds  favor  in  the  most  recent  decisions  of  the  supreme 
court  of  the  United  States  and  is  found  in  some  recent  expressions 
of  the  California  court  itself.  The  recent  decisions  of  the  supreme 
court  of  the  United  States,  the  great  value  of  property  in  the  arid 
States  relying  upon  the  Colorado  doctrine,  and  the  State  admin- 
istrative systems  which  have  become  established,  leave  no  doubt 
that  the  system  has  come  to  stay,  so  far  as  it  concerns  rights  be- 
tween private  persons,  in  any  State  that  has  to-day  adopted  it; 
but  a  certain  qualified  reservation  of  Federal  proprietary  rights,  so 
far  at  least  as  is  necessary  to  the  beneficial  uses  of  government 
property,  and  for  Indian  reservations,  is  still  steadily  asserted 
in  the  United  States  supreme  court's  decisions,  and  the  recent 
discussion  of  the  policy  of  conservation  has  revived  the  assertion  of 
Federal  proprietary  right. 

It  is  hazardous  to  express  an  opinion  where  the  authorities  are 
in  such  conflict.  Three  things,  however,  the  writer  ventures  to 
say  with  some  confidence: 

One  is  that  Lux  v.  Haggin  could  not  have  been  decided  other 
than  it  was,  without  a  breach  of  continuity  in  the  California  law. 
The  California  doctrine  was  contained  in  the  principles  laid  down 
long  before,  by  Judge  Field  in  Moore  v.  Smaw  and  Boggs  v.  Merced, 
that  the  public  lands  with  all  accustomed  incidents  belong  to  the 
United  States;  that  the  freedom  of  the  public  domain  is  a  matter 

9  This   classification  is  based  upon      view,  and   recent  legislation,   tend  to 
the    decisions   of   the    courts,  'but   in      a  contrary  direction, 
most  of  the  former  States  the  popular 


§187  Ch.  8.     THE  STATE  IN  COLORADO.  (3d  ed.)  227 

resting  with  Congress,  and  is  for  the  public  domain  alone;  that 
the  rights  of  private  land,  once  the  land  passes  out  of  the  public 
domain,  are  the  same  and  as  secure  in  California  as  in  any  other 
State  of  the  Union.  To  Judge  Field  more  than  anyone  else  is 
this  attitude  of  the  California  law  due. 

The  second  is  that  which  of  the  two  theories  one  shall  regard 
as  the  correct  formula  is  a  matter  of  the  difference  between  the 
"historical"  and  the  "logical"  methods  of  legal  investigation. 
The  California  law  is  a  consistent  evolution  from  the  political 
conditions  before  the  Civil  War,  when  the  Federal  title  was  the 
starting  point,  and  the  citizen  but  a  trespasser  upon  that  title; 
and  from  that  beginning  it  makes  a  continuous  history.  The  Colo- 
rado law,  on  the  other  hand,  not  bound  by  such  a  history  to  a 
past  generation,  holds  the  law  open  to  logical  deduction  anew 
from  general  rules,  and  does  not  find  a  Federal  title  nor  riparian 
rights  in  such  rules  if  the  State  law  to-day  denies  them.  So  the 
difference  lies  between  which  road  one  travels  in  his  investigation; 
the  "historical  method"  will  bring  him  to  the  Federal  title  and 
common-law  riparian  rights;  the  "logical  method"  will  leave  him 
instead  where  both  are  a  matter  of  local  law  for  each  State 
to  declare  for  itself.  It  is  the  latter  method  which  the  supreme 
court  of  the  United  States  to-day  applies,  and  against  it  the  his- 
torical method  can  only  say  that  it  has  departed  from  historical 
precedent. 

The  third  is  that  the  Western  law  of  waters  is  in  a  state  of 
evolution  in  which  legal  formulas,  whichever  of  the  two  one  may 
adopt  as  theoretically  the  right  one,  are  not  of  greatest  impor- 
tance; for  the  law  will  eventually  work  itself  out  according  to  the 
attitude  of  the  people,  whatever  way  that  may  finally  become  set- 
tled hereafter.  While  we  have  endeavored  to  treat  the  matter 
purely  as  a  legal  one,  yet  in  reality  it  is,  and  always  has  been, 
largely  shaped  by  political  forces,  accommodating  itself  much  to 
the  thought  of  the  times. 

(3d  ed.) 

§  187.  Same. — Aside  from  this  difference  in  the  present  deri- 
vation of  the  rights  of  the  appropriator,  and  in  the  consequent  atti- 
tude toward  riparian  rights,  the  substantive  law  of  appropriation 
itself  is  much  the  same  in  those  jurisdictions  which  confine  it  to 
the  public  lands  as  in  those  that  do  not.  Its  characteristics,  extent 


228  (3ded.)     Pt.  II.     CALIFORNIA  -  COLORADO  DOCTRINES.  §187 

of  right,  loss  of  right,  and  similar  matters,  are  founded  upon  the 
early  California  decisions  made  for  waters  on  the  public  domain ; 
California  being  the  spring  from  which  this  peculiar  feature  of 
Western  law  has  come.  The  decisions  of  that  court  in  the  earlier 
days  seldom  failed  to  be  quoted  in  the  other  Western  States  in  this 
connection,  and  its  early  cases  had  everywhere  a  persuasive  force 
that  closely  approached  authority.  The  substantive  law  of  appro- 
priation is  largely  the  same  under  both  systems,  although  in  some 
States — chiefly,  the  desert  States — recent  statutory  codes  of  admin- 
istrative law  have  been  added  that  are  absent  in  some  of  the  rest 
(although  now  existing  in  most  of  them,  also). 

§§  188-196.     (Blank  numbers.) 


S  197  Ch.  9.     WATERS  ON  PUBLIC  LAND.  (3d  ed.)  229 


CHAPTER  9. 
APPROPRIATIONS  ON  PUBLIC  LAND. 

A.     UNEESEEVED  PUBLIC  LAND. 

§  197.  Extent  of  public  land  area. 

§  198.  The  first  appropriations  were  all  on  public  land. 

§  199.  State  lands. 

§  200.  Presumption  that  lands  are  public. 

§  201.  Abandoned  or  forfeited  claims  to  public  land. 

§  202.  Eights  of  way  and  reservoir  sites  on  unreserved  public  land. 

§  203.  Federal  Eight  of  Way  Acts*  on  unreserved  public  land. 

B.     EESEBVED  PUBLIC  LAND. 
§  204.     New  governmental  policy. 
§  205.     Extent  of  the  reserved  domain. 
§  206.     Authority  to  make  withdrawals. 
§  207.     Military  and  Indian  reservations — Waters  on. 
§  208.     Eights  of  way  over  military  and  Indian  reservations. 
§  209.     Forest  domain — Extent  of. 
§  210.     Waters  upon  forest  reserves. 

§  211.     Eights  of  way  and  reservoir  sites  upon  forest  reserves. 
§§  212-220.     (Blank  numbers.) 

A.     UNEESEEVED  PUBLIC  LAND. 
(3d  ed.) 

§  197.  Extent  of  the  Public  Land  Area. — By  the  Louisiana 
Purchase,  Gadsden  Purchase,  the  Treaty  of  Guadalupe  Hidalgo  and 
others,  the  United  States,  by  purchase  or  conquest,  became  the 
owner  of  the  land  constituting  that  part  of  the  country  now  known 
as  the  Western  States.1 

Public  land  still  constitutes  about  one-third  of  the  geographical 
area  of  the  country,1*  being  the  greater  part  of  the  Western  area 
extending  from  the  one  hundredth  meridian  to  the  Pacific  Ocean. 
Its  area  is  coextensive  with  States.  Arizona,  Idaho,  Nevada,  Utah, 
Wyoming,  for  example,  are  mostly  public  land.  California  is  the 
most  settled,  and  remains  one-half  public  land  (mostly  nonagricul- 
tural).  Following  are  given  tables,  not  wholly  complete,  from 
lack  of  figures  for  reserved  land  other  than  forest.  With  all  in- 
cluded, the  average  public  land  area  will  probably  figure  between 

1  Supra,  see.  66  et  seq.  la  Willey  v.  Decker,  11  Wyo.  496, 

100  Am.  St.  Eep.  939,  73  Pac.  210. 


230  (3d  ed.)     Pt.  II.     CALIFORNIA  -  COLORADO  DOCTRINES.  §  197 

fifty  and  fifty-five  per  cent  of  the  area  of  the  States  and  Territories 
in  the  list. 

Area  of  Public  Land  in  Percentage  of  State  or  Territory. 


Unreserved.     Forest  Re- 

Total. 

serves. 

Alaska    

97% 

7% 

about  99.9% 

Arizona   

57% 

21% 

78% 

California    

24% 

28% 

52% 

Colorado    

33% 

23% 

56% 

Idaho    

46% 

37% 

83% 

Kansas    

3% 

.6% 

.9% 

Montana    

38% 

21% 

59% 

Nebraska   

4% 

1% 

5% 

Nevada    

80% 

7% 

87% 

New  Mexico   

46% 

14% 

60% 

North  Dakota  

3% 

.03% 

3.03% 

Oklahoma    

01% 

.1% 

.11% 

Oregon   

28% 

26% 

54% 

South  Dakota  

9% 

3% 

12% 

Utah    

66% 

14% 

80% 

Washington    

7% 

27% 

34% 

Wyoming   

55% 

14% 

69% 

The  following  shows  the  areas  in  acres,  giving,  first,  the  area 
of  the  State  or  Territory;  second,  the  unreserved  and  unappropri- 
ated land  thereof,  and  third,  the  forest  reserve  area  thereof  :  Alaska, 
378,165,760,  368,014,735,  26,761,626;  Arizona,  72,931,840,  41,491,- 
369,  15,214,745;  California,  101,310,080,  24,864,884,  27,968,510; 
Colorado,  66,526,720,  21,726,192,  15,491,791;  Idaho,  53,960,320, 
24,743,804,  19,963,171;  Kansas,  52,581,120,  137,180,  302,387; 
Montana,  93,806,080,  36,015,943,  19,474,696;  Nebraska,  49,612,800, 
1,879,486,  556,072  ;  Nevada,  70,841,600,  56,474,688,  5,109,415  ;  New 
Mexico,  78,485,760,  36,454,692,  11,140,123;  North  Dakota,  45,335,- 
680,  1,410,225,  13,940;  Oklahoma,  44,836,480,  5,007,  60,800;  Ore- 
gon, 61,887,360,  17,580,573,  15,920,822;  South  Dakota,  49,673,600, 
4,562,804,  1,294,440;  Utah,  54,393,600,  35,955,554,  7,411,157; 
Washington,  44,241,280,  3,196,059,  12,007,340;  Wyoming,  62,664,- 
960,  34,575,159,  8,941,681.  These  areas  are  from  official  sources, 
and  the  percentage  table  is  figured  from  the  areas.  Only  States  and 
Territories  covered  by  this  book  are  given.2 

2  These  acreage  figures  are  from  the  re-  The    percentages    are    figured    from    the 

port  for  1910  of  the   Commissioner  of  the        acreage  table.      As  to  the  Alaska  percent- 


General  Land  Office.  The  Alaska  areas  age,  the  same  thing  applies  as  noted  under 
for  unreserved  land  and  forest  reserves  the  acreage  table.  The  amount  of  private 
probably  were  figured  at  different  dates,  land  in  Alaska  is  in  any  event  of  insigni- 


and  probably  a  deduction  should  be  made  ficant  extent. 
of  a  few  million  acres  from  the  unreserved  In  addition  to  the  foregoing  figures  there 

area,    representing   transfers    to   forest   re-  are  extensive  areas  in  Indian,  military  and 

serves,    since,    as    the    figures    stand,     the  similar    reservations     (especially    in    Okla- 

total  of  the  last  two  columns  would  exceed  homa    and    the    Dakptas),    and    in    power- 

the  area  of  the  territory  given  in  the  first  site     and    conservation    withdrawals.     On 

column.  July  1,  1909,  the  total  unreserved  and  un- 


§  198  Ch.  9.     WATERS  ON  PUBLIC  LAND.  (3d  ed.)   231 

The  theory  of  the  law  has  been  that  the  Federal  government's 
duty  was  that  of  a  trustee  to  dispose  of  these  lands  for  the  upbuild- 
ing of  the  States  constituted  upon  them.3  The  laws  were  framed 
to  secure  development  and  ownership  by  the  citizens,  to  accomplish 
the  growth  of  the  States.  Upon  this  idea  were -based  the  pre- 
emption, homestead,  mining,  and  water  laws,  under  which  most 
of  the  advance  of  the  West  has  been  made. 

The  land  laws  are  beyond  the  scope  of  this  book,  and  are  here 
mentioned  to  show  that  the  same  idea  founds  them  as  has  founded 
the  water  law  of  the  public  domain. 

(3d  ed.) 

§  198.    The  First  Appropriations  were  All  on  Public  Land. — 

When  the  miners  arrived  in  California,  but  little  of  the  land  com- 
posing the  State  had  passed  into  private  hands.  When  the  mines 
were  located  and  the  early  customs  established,  title  to  the  land 
had  passed  to  the  United  States,  by  treaty,  from  Mexico.  The 
license  from  the  United  States  to  enter  thereon  and  appropriate 
water  was  first  presumed  from  acquiescence  therein.4  It  is  now 
expressly  granted  by  the  act  of  1866  (sections  2339  and  2340  of 
the  Revised  Statutes  of  the  United  States).5  "For  a  long  period 
the  general  government  stood  silently  by  and  allowed  its  citizens  to 
occupy  a  great  part  of  its  public  domain  in  California,  and  to 
locate  and  hold  mining  claims,  water-rights,  etc.,  according  to 
such  rules  as  could  be  made  applicable  to  the  peculiar  situation ;  and 

appropriated  public  land  was  731,354,081  public   domain   exclusive   of   Alaska.     But 

acres:  the  total  forest  reserves  on  Decem-  these  figures  are  of  the  year  1905,  and  it 

ber  31,  1909,  were  194,496,594  acres,  and  would  require  a  search  of  the  various  an- 

in  1906  there  were  838,088  acres  in  mill-  nual    departmental    reports    to    bring    the 

tary  reservations;   a  total   of  881,688,763  lists    down    to    date.     The    report    of    the 

acres  of  public  land,  exclusive  of  Indian,  Secretary    of    the    Interior    for    the    year 

reclamation,  and  other  special  reservations.  ending  June   30,    1910,   gives  statistics  of 

On   June   30,    1910,   there  were   1,500,000  unappropriated      and      unreserved      lands 

acres  in  149  power-site  reserves.  (page  11);   Carey  Act  segregations   (page 

.\ir.    Philip    P.    Wells,    counsel    for    the  34)  ;    national    parks    and    national    monu- 

National    Conservation    Association,    gives  ments  (pages  56,  64,  98)  ;  enlarged  home- 

the  following  information:  stead    designations    (page    93);    coal    land 

Unfortunately  there  does  not  appear  to  withdrawals  and  classifications  (page  94)  ; 

be  any  single  publication  where  statistics  oil   land,    phosphate    and   power-site   with- 

of  all  public  land  areas  have  been  brought  drawals    (pages  94,   95,   96)  ;   and  of  bird 

together.     The  appendix  to  the  Report  of  reserves  (page  99). 
the  Public  Lands  Commission,  transmitted  ._,  .     , 

to  Congress  March  2,   1905    (58th  Cong.,  3     The  grantor  of  the  public  lands, 

3d  Sess.  8.  D.  189),  page  139  (table  l),  the  national  government,  was  to  hold 

gives  the  area  of  the  original  public  domain  fhpsp  la.mls  in  trust  fnr  thp  rmhlip 
by  States;  page  284  (table  25),  gives  the  Kls.  "?  "l  ™.e  Pul  »?, 

national  parks  by  States;  page  284  (table  to   be   acquired   by  any   qualified   citi- 

26)    gives  the   United   States   naval,   mili-  zen    thereof    on    compliance    with     the 

tary,  light-house  and  other  reservations,  all  rnleg    prescribed."      Hough    V.    Porter, 

but  seven  of  them  being  lumped  and  esti-  _..    „     *o10    or  T>   „    -oo    no  r>         inoo 

mated;  pages  285-307  ftable  27)  give  the  51  Or.  318,  95  Pac.  l32,  98  Pac.  1083, 

Indian  Reservations  by  States;  pages  308-  102  Pac.   728. 
359    (table    28)    give    unappropriated    and  4   guvra     sec     89 

unreserved  lands  by  States  and  counties;  KB  nJi     IKK 

table   29   summarize*   the   disposal   of   the  °  bupra,  sees.  94,  155. 


232  (3ded.)     Pt.  II.     CALIFORNIA  -  COLORADO  DOCTRINES. 


198 


when  there  were  contests  between  hostile  claimants;  the  courts  were 
compelled  to  decide  them  without  reference  to  the  ownership  of 
the  government,  as  it  was  not  urged  or  presented.  In  this  way — 
from  1849  to  1866 — a  system  had  grown  up  under  which  the  rights 
of  locators  on  the  public  domain,  as  between  themselves,  were 
determined,  which  left  out  of  view  the  paramount  title  of  the 
government.  The  acts  of  1866  and  1870  were  intended  merely 
to  expressly  recognize  and  ratify  the  system. "  6  It  was  for  many 
years  assumed  that  the.appropriator  always  seeks  to  make  an  ap- 
propriation on  public  lands  only.  Until  the  recent  policy  of  con- 
servation, no  question  was  any  longer  raised  to  his  right  to  do  so.7 
Appropriation  of  water  on  desert  lands  under  the  act  of  1877  8 
is  upon  condition9  that  "all  lands  exclusive  of  timber  lands 
and  mineral  lands  which  will  not,  without  irrigation,  produce  some 
agricultural  crop,  shall  be  deemed  desert  lands,  within  the  meaning 
of  this  act,  which  fact  shall  be  ascertained  by  proof  of  two  or  more 
credible  witnesses  under  oath,  whose  affidavits  shall  be  filed  in 
the  land  office  in  which  said  tract  of  land  may  be  situated."  It 


«  Cave  v.  Tyler,  133  Cal.  566,  65 
Pac.  1089;  similarly,  Broder  v.  Na- 
toma  Water  Co.,  101  U.  S.  274,  25 
L.  Ed.  790,  5  Morr.  Min.  Rep.  33 ;  Os- 
good  v.  Eldorado  Water  Co.,  56  Cal. 
571,  5  Morr.  Min.  Rep.  37. 

7  The  provisions  of  the  statutes  of 
1866  and  1870  referred  to  are  those 
now  incorporated  in  sections  2339  and 
2340,  Revised  Statutes,  and  are  as 
follows : 

Revised  Statutes,  section  2339: 
"Whenever,  by  priority  of  possession, 
rights  to  the  use  of  water  for  min- 
ing, agricultural,  manufacturing,  or 
other  purposes,  have  vested  and  ac- 
crued, and  the  same  are  recognized 
and  acknowledged  by  the  local  cus- 
toms, laws  and  decisions  of  courts, 
the  possessors  and  owners  of  such 
vested  rights  shall  be  maintained  and 
protected  in  the  same;  and  the  right 
of  way  for  the  construction  of  ditches 
and  canals  for  the  purposes  herein 
specified  is  acknowledged  and  con- 
firmed; but  whenever  any  person,  in 
the  construction  of  any  ditch  or  canal, 
injures  or  damages  the  possession  of 
any  settler  on  the  public  domain,  the 
party  committing  such  injury  or  dam- 
age, shall  be  liable  to  the  party  in- 
jured for  such  injury  or  damages." 


Revised  Statutes,  section  2340 : 
"All  patents  granted,  or  pre-emption 
or  homesteads  allowed,  shall  be  sub- 
ject to  any  vested  and  accrued  water- 
rights,  or  rights  to  ditches  and  reser- 
voirs used  in  connection  with  such 
water-rights,  as  may  have  been  ac- 
quired under  or  recognized  by  the 
preceding  section." 

"From  the  beginning,  in  the  arid 
regions  of  the  Western  States  and 
Territories,  it  has  been  the  custom  of 
the  people  to  divert  from  their 
natural  channels  the  waters  of  the 
streams  upon  the  public  lands,  and 
appropriate  the  same  to  the  purposes 
of  mining,  agriculture,  and  other  use- 
ful and  beneficial  uses."  Van  Dyke 
v.  Midnight  Sun  Co.  (Alaska),  177 
Fed.  90.  See,  also,  Sowards  v.  Mea- 
gher  (Utah),  108  Pac.  1113. 

Preventing  persons  from  entering 
upon  public  lands  to  which  the  party 
so  preventing  entry  has  no  right  is  a 
misdemeanor  in  California.  Pen. 
Code,  sec.  420. 

8  A.  C.  March  3,  1877,  19  Stat.  377, 
c.   107;   U.   S.   Comp.   Stata.   1901,   p. 
1548. 

9  See   supra,   sec.   129. 


§§199,200 


Ch.9.     WATERS  ON  PUBLIC  LAND. 


(3ded.)  233 


has  been  held  that  where  a  person  files  on  lands  under  the  Desert 
Land  Act,  and  makes  an  affidavit  that  they  are  desert  in  character 
and  unreclaimed,  he  cannot  assert  a  right  to  water  for  irrigation 
as  initiated  before  such  entry.10  Regarding  the  Desert  Land  Act, 
reference  is  made  to  a  preceding  section.11 

(3d  e<J.) 

§  199.  State  Lands. — Of  certain  lands  the  State  is  the  owner 
and  the  State  has  likewise  made  the  law  of  appropriation  apply 
to  them  in  California.12  In  other  States  under  similar  statutes,  the 
law  has  been  declared  to  be  the  same.13  Similar  statutory  provisions 
exist  in  most  of  the  other  States  for  rights  of  way,  reservoir  sites, 
and  water  appropriations  on  State  lands.14 

Swamp  lands,  an  important  class  of  State  lands,  are  dealt  with 
by  special  statutes.15 

(3d  ed.) 

§  200.  Presumption  That  Lands  are  Public. — Formerly  this 
preponderance  of  public  lands  in  fact  gave  rise  to  a  presumption 
of  law  that  lands  were  public,  and  the  party  claiming  that  the 
lands  in  suit  were  private  had  the  burden  of  proof.16  But  there 
is  no  such  presumption  to-day  for  an  appropriator  to  rely  on.17 


10  Hough  v.  Porter,  51  Or.  318,  95 
Pac.  732,  98  Pac.  1083,  102  Pac.  728. 

11  Supra,  sec.  128. 

12  Civ.  Code,  sees.  1410-1422;   Lux 
v.  Haggin,  69  Cal.  255,  10  Pac.  674; 
affirmed    in   Wood     v.    Etiwanda    etc. 
Co.,  122  Cal.  152,    158,  54  Pac.  726; 
Pomeroy  on  Riparian  Rights,  sec.  29. 

13  Smith   v.   Denniff,   24   Mont.   20, 
81    Am.    St.   Rep.   408,    60   Pac.    398, 
50  L.  R.  A.  741 ;   Carson  v.  Gentner, 
33  Or.  512,  52  Pac.  506,  43  L.  R.  A. 
130;    Parkersville   etc.    Dis't.   v.   Wat- 
tier,   48   Or.   332,   86   Pac.     775.     See 
Ison  v.  Nelson  Min.  Co.,  47  Fed.  199. 

14  Colorado. — Rev.  Stats.  1908,  sec. 
3499  et  seq. 

Idaho. — Laws  1907,  p.  526;  Mc- 
Lean's Revised  Codes,  sees.  1635-1638. 

Montana. — Laws  1911,  c.  118,  p. 
254;  Laws  1911,  c.  123,  p.  338. 

Nebraska. — Comp.  Laws  1903,  sec. 
6448;  Stats.  1907,  p.  437. 

Neiv  Mexico. — Laws  1907,  p.  71. 

North  Dakota. — Laws  1905,"  c.  34, 
sec.  60. 

South  Dakota.— Laws  1907,  c.  180, 
sec.  58. 


Orecion.—B.  &  C.  Comp.,  sec.  3338. 

Washington. — Pierce's  Codes  1905, 
sec,  5904.  In  the  Statute  of  1907, 
page  353,  the  right  of  way  for  irri- 
gatcrs  over  State  lands  is  granted, 
upon  filing  map  and  field-notes  with 
the  board  of  state  land  commissioners, 
and  paying  not  less  than  ten  dollars 
per  acre  for  the  land  irrigated. 
"Nothing  in  this  act  shall  be  deemed 
to  in  any  way  conflict  with  any  exist- 
ing law  of  this  State  relating  to  the 
method  of  acquiring  rights  of  way 
for  irrigation  districts."  In  the  Stat- 
ute of  1907,  page  -233,  the  right  is 
granted  to  overflow  State  lands  for 
reservoirs.  See  Stats.  1911,  c.  109. 

The  foregoing  list  is  not  complete. 

15  Infra,  sec.  350. 

l«  Burdge  v.  Smith,  14  Cal.  380, 
12  Morr.  Min.  Rep.  448 ;  Smith  v.  Doe, 
15  Cal.  100,  5  Morr.  Min.  R«p.  218; 
Lytle  Creek  Co.  v.  Per  dew  (Cal.),  2 
Pac.  732.  See  Pomeroy  on  Riparian 
Rights,  sec.  93. 

17  Santa  Cruz  v.  Enright,  95  Cal. 
105,  30  Pac.  197;  Cave  v.  Tyler,  133 
Cal.  566,  65  Pac.  1089.  But  see  Na- 


234  (3ded.)     Pt.  II.     CALIFORNIA  -  COLOEADO  DOCTRINES.  §201 

To-day  the  larger  part  of  the  agricultural  lands  in  California  and 
much  of  it  also  in  other  States  is  no  longer  'public,  but  has  passed 
into  private  hands.18 

(3d  ed.) 

§  201.    Abandoned  or  Forfeited  Claims  to  Public  Land. — Such 

lands,  however,  as  are  privately  held  under  possessory  rights,  such 
as  unpatented  mining  locations,  or  conditional  railway  grants,  may 
be  forfeited  or  abandoned;  they  then  again  become  part  of  the 
public  domain,  as  vacant  public  land,  and  appropriations  of  water 
may  be  made  thereon.19  When  an  Indian  reservation  is  thrown 
open  to  settlement,  it  becomes  vacant  public  land  for  this  pur- 
pose.20 

"When  the  land  is  thus  again  public,  its  public  character  relates 
back  to  the  date  when  the  abandoned  or  forfeited  claim  or  other 
withdrawal  originated;  so  that  an  appropriation  of  water  made 
(on  a  homestead  entry)  by  a  stranger  to  the  entryman  relates  back, 
if  the  entry  is  thereafter  canceled,  and  becomes  an  appropriation 
as  on  public  land  before  the  homestead  entry  was  made.21  A  for- 
feited homestead  entry  is  as  though  never  segregated  from  the 
public  domain.  An  appropriator  of  water  thereon  between  the 
entry  and  the  forfeiture  prevails  against  a  rival  entryman  claim- 
ing the  same  land  under  a  different  contemporaneous  homestead 
entry.22  "When  land  included  in  a  railroad  grant  reverts  to  the 
government,  a  subsequent  patentee  under  the  homestead  laws  takes 
the  title  subject  to  the  right  of  way  for  a  ditch  or  canal  over  it 
which  was  acquired  prior  to  his  entry ;  and  it  is  immaterial  whether 
the  appropriation  was  made  prior  or  subsequent  to  the  time  the 
government  was  reinvested  with  title. ' ' M 

toma   etc.   Co.   v.   Hancock,    101    Cal.  651,    86    C.    C.    A.    519.     See,    also, 

42,    53,   31     Pac.    112,    35   Pae.    334;  Nevada  D.  Co.  v.  Bennett,  30  Or.  59, 

and  People   v.   Truckee   etc.   Co.,   116  60   Am.   St.   Rep.    777,   45   Pac.   472; 

Cal.   397,  400,  58   Am.   St.  Rep.   183,  Story  v.  Wolverton,  31  Mont.  346,  78 

48  Pac.  374,  39  L.  R.  A.  581.  Pac.  589;  Sowards  v.  Meagher  (Utah, 

18  One-half  of  California's  area  re-  1910),  108  Pac.  1113.     See  infra,  sec. 
mains  public,  but  it  is  mostly  moun-  207. 

tain  or  desert  land.  21  San  Jose  W.  Co.  v.  San  Jose  R. 

19  San   Jose   W.    Co.   v.    San    Jose  Co.,  129  Cal.  673,  62  Pac.  269. 
Land  Co.,  189  U.  S.  177,  23  Sup.  Ct.  22  Le  Quime  v.   Chambers     (1908), 
Rep.  487,  47  L.  Ed.  765,  S.  C.,  129  Cal.  15  Idaho,  405,  98  Pac.  415,  21  L.  R. 
673,  62  Pac.  269;  San  Dimas  etc.  Co.  A.,  N.  S.,  76. 

v.  San  Jose  etc.  Co.,  142  Cal.  583,  76  23  Maffett  v.  Quine  (C.  C.),  93  Fed. 

Pac.  1128.  347.     In  a  Nebraska  case  it  was  first 

20  Morris    v.     Bean     (Mont.),    146  held  that  where  a  homestead  claimant 
Fed.  432;   Bean  v.   Morris,   159   Fed.  grants  a  right  of  way  to  plaintiff  for 


§202  Ch.  9.     WATEES  ON  PUBLIC  LAND.    '         (3ded.)-235 

(3d  ed.) 

§  202.  Rights  of  Way  and  Reservoir  Sites  on  Unreserved  Pub- 
lic Land. — Rules  and  regulations  for'  appropriation  of  rights  of 
way  and  reservoir  sites  upon  public  lands  were  left  by  Congress 
to  State  and  local  action  by  the  act  of  1866,24  and  pursuant  thereto, 
a  body  of  local  law  arose  as  set  forth  in  another  chapter.25  Recog- 
nizing the  essential  nature  of  the  right  of  access  to  the  streams  in 
any  system  of  water  law,1  the  act  of  1866,  in  making  a  continuing 
offer  of  grant  of  water-rights  on  public  land  subject  to  compliance 
with  local  law,  joined  therewith  a  like  continuing  offer  of  grant 
of  reservoir  sites  and  rights  of  way  upon  terms  to  be  set  by  local 
law,  saying:  "And  the  right  of  way  for  the  construction  of  ditches 
and  canals  for  the  purposes  herein  specified  is  acknowledged  and 
confirmed,"  including,  in  the  amendment  of  1870,  reservoir  sites;2 
the  act  of  1866  being  entitled,  "An  act  granting  the  right  of  way 
to  ditch  and  canal  owners  through  the  public  lands,  and  for  other 
purposes."  As  elsewhere  quoted,  these  acts  amounted  to  "an 
unequivocal  grant"  from  the.  United  States  to  the  appropriator, 
equally  as  to  waters  and  rights  of  way  and  reservoir  sites,  when  the 
local  law  was  complied  with.  No  documentary  evidence  of  this 
grant  was  given  to  the  appropriator,  but  the  theory  is  as  though 
patent  issued,  since  a  grant  by  act  of  Congress  is  the  highest  pos- 
sible muniment  of  title.3 

Under  the  act  of  1866,  the  appropriator  might  not  only  build 
ditches  but  might  change  the  point  of  diversion  from  one.  place  to 
another  on  the  public  land;  likewise  the  place  of  use,  the  means  of 
use  or  the  purpose  of  use.  For  all  these  things  the  United  States 
gave  the  greatest  freedom  as  respects  the  public  domain,  and,  so 
long  as  private  rights  existing  at  the  time  were  not  interfered  with, 
the  appropriator  (subject,  now,  to  the  control  of  the  State  Engineer) 
might  make  these  changes  freely  without  in  any  way  derogating 
from  his  original  right.4  This  is  the  system  of  local  law  for  rights 
of  «way  over  the  public  domain  built  up  under  the  act  of .  1866. 
"The  government,  by  act  of  Congress,  invites  persons  to  enter 

a  ditch  and  then  abandons  his  home-  Neb.  198,  133  Am.  St.  Rep.  650,  122 
stead,   plaintiff  has   no   right   of  way  N.  W.  862. 
against  a  later  homestead  entry  by  a  24  Supra,  sec.   92  et  seq. 
third    person,    and     cannot    enter    to  25  Infra,   sec.   361,   how  an   appro- 
clean   out    his    ditch.     Rasmussen    v.  priation  is  made. 
Blust,   83   Neb.   678,   120  N.  W.   184.  1  Supra,  see.  54. 
This  overlooked  the  act  of  1866,  and  2  U.  S.  Rev.  Stats.,  sees.  2339,  2340. 
was  accordingly  reversed  on  rehearing,  3  Supra,  sec.  155. 
and  the  plaintiff  was  protected.     85  4  Infra,  see.  496  et  seq. 


236-(3ded.)    Pt.  II.    CALIFORNIA  -  COLORADO  DOCTRINES.    §§203-205 

upon  the  public  domain  for  the  purpose  of  locating,  appropriating, 
and  diverting  any  waters  thereon  found,  for  such  useful  and  bene- 
ficial purposes  as  are  recognized  by  the  laws  of  the  State  or  juris- 
diction within  which  the  lands  are  located. "  5 

(3d  ed.) 

§  203.    Federal  Right  of  Way  Acts  on  Unreserved  Public  Land. 

The  grant  in  the  act  of  1866  was  never  carried  into  documentary 
form  with  regard  to  waters,  because,  in  time,  the  Federal  title  in 
that  regard  faded  away,  leaving  the  States  in  sole  control,  now 
usually  claiming  as  a  matter  of  right,  without  the  need  of  Federal 
grant.  The  States,  as  a  rule,  now  patent  the  waters.6  But  in 
this  waters  and  rights  of  way  became  separated,  the  latter  retaining 
their  Federal  derivation.  With  the  growing  importance  of  irri- 
gation and  other  enterprises,  special  new  Right  of  Way  Acts  were 
passed  by  Congress. 

These  acts  are  chiefly  the  act  of  March  3,  1891,7  confined  to  irri- 
gation; the  act  of  February  15,  1901,8  applying  to  all  purposes; 
the  act  of  February  1,  1905,9  applying  to  municipal  or  mining 
purposes ;  and  the  act  of  February  13,  1897,10  applying  to  reservoirs 
for  livestock,  and  other  less  important  ones  given  in  the  Federal 
statutes  collected  in  a  later  part  of  this  book.  There  is  an  addi- 
tional provision  in  an  act  of  March  4,  1911. 

These  acts  are  considered  more  at  length  in  another  place.11 

B.     RESERVED  PUBLIC  LAND. 
(3d  ed.) 

§  204.  New  Governmental  Policy. — The  law  of  reserved  public 
land,  and  of  water  and  rights  of  way  thereon,  is  now  in  the  mak- 
ing, and  but  little  can  be  done  further  than  to  state  the  meager 
authority  which  exists  regarding  it,  premising  that  any  conclusions 
drawn  are  tentative  and  that  the  field  is  more  one  of  new  govern- 
mental policy  than  of  established  law. 

(3d  ed.) 

§  205.    Extent  of  the  Reserved  Domain. — The  area  now  placed 

in  reservation  is  somewhere  about  two  hundred  million  acres,  most 

5  Le  Quime  v.  Chambers,  15  Idaho,  8  31  Stat.  790. 
405,  98  Pac.  415,  21  L.  R.  A.,  N.  S.,           9  33   Stat.   628.      . 
76.  10  29  Stat.  484. 

6  Infra,  sec.  408  et  seq.  n  Infra,  c.  19,  how  an  appropria- 

7  36  Stat.  1095,  c.  561;  1  Supp.  Rev.  tion  is  made — Federal  method. 
Stats.  (1891)  942,  946. 


§  206  Ch.  9.     WATEES  ON  PUBLIC  LAND.  (3d  ed.)  237 

of  which  compose  the  forests  and  grazing  lands,  the  remainder  being 
reserved  for  reclamation,  Indian  and  military  reservations,  coal  and 
phosphate  lands,  power  sites,  and  conservation  generally.  It  consti- 
tutes about  one-third  of  the  area  of  the  Western  States  (exclusive  of 
Alaska)  ,J-2  the  figures  for  each  jurisdiction  being  given  in  a  preceding 
note.13  In  the  East,  a  bill  passed  Congress  in  1911  to  buy  the 
White  Mountains  in  New  England,  and  part  of  the  Appalachian 
region,  for  Eastern  forest  reserves.13* 

(3d  ed.) 

§  206.    Authority  to  Make  Withdrawals. — General  authority 

to  increase  the  reserved  domain  was  conferred  upon  the  President 
by  the  act  of  1910.14  Regarding  the  validity  of  withdrawals  made 
previous  to  this  act,  other  than  by  specific  authority  of  Congress 
(much  was  withdrawn  without  such  specific  authority),  there  has 
been  much  discussion.  The  argument  in  favor  of  their  validity 
rested  upon  the  contention  that  "in  the  President  are  vested  those 
powers  which  in  England  at  that  time  [the  date  of  the  adoption 
of  our  constitution]  were  vested  in  the  English  Chief  Executive, 
namely,  George  III."15  The  argument  to  the  contrary  stated  by 
Senator  Borah  of  Idaho  is  that  withdrawals  revoke  acts  of  Con- 
gress, since  the  homestead,  mining,  and  other  laws  directed  that 
the  lands  shall  be  disposed  of ;  that  the  President  cannot  .exercise 
such  power  over  acts  of  Congress.16  Much  citation  of  authority 
on  both  sides  will  be  found  in  the  Congressional  Record  for  1909-10. 
By  the  enabling  acts  for  the  admission  of  New  Mexico  and  Ari- 
%  zona  into  the  Union,  title  to  power  sites  upon  public  lands  was 
reserved  to  the  United  States.17  By  an  act  of  Congress  in  1910 
the  Secretary  of  the  Interior  was  given  general  power  to  withdraw 
power  sites  and  irrigation  sites  in  Indian  reservations.18 

12  Alaska  being  mostly  unreserved          is  "The    Outlook,"    for    August    6, 
public  land.  1910,    p.     765.     See,    also,     Attorney 

13  Supra,  sec.  197.  General  Bonaparte's  opinion  in  2-2  Op. 
I3a  See  A.  C.  March  1,  1911   (Pub.       Atty.  Gen.  13. 

No.  435),  appointing  a  commission  to  16  45  Cong.  Rec.  6342. 

co-operate  with  States,  etc.  i7  Session  Laws  61st  Cong.   (1910), 

14  Quoted   in   a   later   part   of   this  2d   Session,   c.   310,   sees.    10   and   28. 
book,    devoted    to    Federal    statutes.  See  the  new  Ariz.  Const.,  art.  10,  sec. 
Infra,  sec.  1428.     Congress  may  con-  6,   authorizing   the    United   States   to 
fer    such     power.     Light     v.     United  withdraw  power  sites  within  five  years. 
States    (May,  1,  1911),  —  U.  S.  — ;  is  Sess.   Laws,   61st   Cong.    (1910), 
Grimaud   v.    United    States    (May    1,  2d  Session,  c.  431,  sees.  13,  14. 
1911),  —  U.  S.  — . 


238  (3ded.)     Pt.  II.     CALIFORNIA  -  COLORADO  DOCTRINES.  §207 

(3d  ed.) 

§  207.  Military  and  Indian  Reservations — Waters  on. — Con- 
fining ourselves  to  a  statement  of  the  authorities,  we  find  divergent 
theories  regarding  the  law  of  waters  (as  distinguished  from  rights 
of  way)  on  military  and  Indian  reservations. 

Under  the  law  declared  in  Kansas  v.  Colorado,19  State  law  (usually 
the  law  of  appropriation  to  actual  use)  governs  waters  upon  a  Fed- 
eral reservation  as  in  any  other  part  of  the  State.  Water-rights 
thereon  inhere  in  the  United  States  only  to  the  extent  of  actual 
use,  beyond  which  private  parties  may  appropriate  the  water  wher- 
ever they  can  obtain  lawful  access  to  it.  "An  appropriation  made 
of  such  waters  will  be  protected  even  as  against  the  government  of 
the  United  States,"  it  is  said  in  a  recent  Utah  case,  ruling  that 
acquisition  of  the  right  to  use  unappropriated  public  waters, 
whether  on  .the  public  domain,  within  a  reservation,  or  elsewhere, 
is  controlled  by  the  laws  and  customs  of  the  State  in  which  the 
water  is  found.20  In  a  case  in  the  Federal  courts — Krall  v.  United 
States — arising  in  Idaho  where  appropriation  is  the  sole  law  of 
waters,  it  was  held  that  the  right  of  a  military  reservation  was 
similar  to  that  of  a  private  appropriator  and  extended  only  to  the 
water  in  actual  use  at  the  time  a  private  party  diverts  the  water. 
The  court  assimilated  the  extent  of  reservation  to  an  appropriation, 
and  allowed  subsequent  appropriations  of  the  surplus  beyond  actual 
use  at  the  time.  The  court  said :  ' '  The  creation  of  the  reservation 
for  military  post  purposes  did  not  destroy  or  in  any  way  affect 
the  doctrine  of  appropriation  thus  established  by  the  government 
in  respect  to  the  waters  of  the  non-navigable  streams  upon  the  • 
public  lands.  They  •  continued  subject  to  appropriation  for  any 

19  206  U.  S.  46,  27  Sup.  Ct.  Rep.  proclaimed  so  for  the  future,  and  this 
655,  51  L.  Ed.  956.  was  enough ;  an  appropriation  may  be 

20  Sowards      v.      Meagher      (Utah,  made  for  future  use,  if  the  delay  in 
1910),   108   Pac.    1113.     In   this   case  accomplishment    is    not    unreasonably 
defendant    filed    with    the    State    En-  long.     The   court   further   says:    "We 
gineer   an   application   to   appropriate  have    no    doubt    that    unappropriated 
water    on    an    Indian   reservation    for  public  water   on   a   reservation   or   on 
irrigation  of  lands  therein  after  proc-  the  public  domain  is  subject  to  appro- 
lamation    by    the    United    States    for  priation,  and  may  be  appropriated  for 
opening  the  lands,  but  before  actual  a   beneficial   purpose,   though   the   ap- 
opening.     Plaintiff  thereafter  filed  ap-  propriator  has  not,  when  his  applica- 
plication  for  the  same  water  and  pur-  tion  is  filed  with  the  State  Engineer, 
pose    on    the    very    day    of    the    land  a    present    right    in    or    to    the    lands 
opening.     The     State     Engineer     ap-  along  the  stream  from  which  the  water 
proved   the  first  application.     It   was  is  proposed  to   be   diverted,   or  in   or 
held    that    he    properly  .did    so,    for,  to  the  lands  proposed  to  be  irrigated 
though   the  land  to  be  irrigated   was  by  him." 

not  then  open  to  settlement,  yet  it  was 


§  207  Ch.  9.     WATEKS  ON  PUBLIC  LAND.  (3d  ed.)  239 

useful  purpose.  The  appropriation  of  a  part  of  those  waters  for 
uses  of  the  military  post  secured  it  in  the  use  of  the  portion  so 
appropriated,  but  it  did  not  take  from  others  the  right  to  make 
such  appropriation  above  the  reservation  as  would  not  interfere 
with  its  prior  appropriation."21  It  has,  likewise,  been  said  that 
when  the  United  States  makes  an  appropriation  of  water  for  the 
Reclamation  Service,  it  does  so  under  the  same  terms  as  a  private 
party  and  is  bound  just  as  much  by  the  State  law.22  The  National 
Irrigation  Act,  the  act  creating  forest  reserves,  the  Eight  of  Way 
Act  of  March  3,  1891,  and  almost  all  acts  of  Congress  which  men- 
tion the  matter  since  the  act  of  1866,  expressly  declare  that  the 
law  of  waters  shall  be  a  matter  of  State  law.22* 

But  the  general  tendency  of  the  Federal  courts  in  dealing  with 
waters  on  or  use  by  military  or  Indian  reservations  is  to  consider 
the  law  of  appropriation  on  public  land  to  rest  upon  the  act  of 
1866  (as  in  California)  rather  than  upon  State  law;  to  tacitly  as- 
sume that  the  creation  of  the  reservation  impliedly  repealed  the 
act  of  1866  as  to  waters  thereon;  and  to  restore  the  proprietary 
rights  of  the  United  States,  which  the  California  law  gives  as  a 
riparian  proprietor,  not  limited  to  the  amount  of  water  in  actual 
use  at  any  specific  time.  The  supreme  court  of  the  United  States 
says  in  Winters  v.  United  States  23  that  the  right  of  the  reserva- 
tion to  water  flowing  through  it,  even  in  the  absence  of  actual  use 
thereon  (if  necessary  for  use  in  the  future),  cannot  be  destroyed 
by  private  appropriators  who  first  put  it  to  use  under  local  law  so 
permitting,  even  in  States  following  the  Colorado  doctrine  which 
ignore  the  proprietary  rights  of  the  United  States  as  riparian  pro- 
prietor in  other  aspects.24  This  holding  (though  expressly  leaving 
open  the  question  whether  riparian  rights  exist  in  Montana)  is 
rather  to  the  effect  that  the  reservation  stands  as  a  riparian  pro- 

21  Krall  v.  United  States,  79  Fed.  22a  Supra,  sec.  176 ;  infra,  sec.  1429. 
241,  24  C.  C.  A.  543.     Judge  Gilbert,  23  207  U.  S.  564,  28  Sup.  Ct.  Rep. 
dissenting,  believed  there  was  a  reser-       207,  52  L.  Ed.  340. 

vation  analogous  rather  to  the  rights  24  See,   also,   United   States   v.   Rio 

of  a  riparian  proprietor  under  a  land  Grande  etc.  Co.,  184  U.  S.  416,  22  Sup. 

grant  under  the  California  theory,'  in  Ct.  Rep.  428,  46  L.  Ed.  619;  Gutierres 

which  case  actual  use  at  the  time  is  v.  Albuquerque  etc.  Co.,  188  U.  S.  555, 

not  alone  the  test,  but  must  be  con-  23  Sup.  Ct.  Rep.  338,  47  L.  Ed.  588; 

sidered  with  possible  uses  thereafter,  United  States  v.  Conrad  Inv.  Co.,  156 

which  seems  the  effect  also  of  Winters  Fed.   130;    also    161   Fed.   829,   88   C. 

v.  United  States  below  referred  to.  C.  A.  647;  Winters  v.  United  States, 

22  United  States  v.  Burley   (Idaho,  207    U.  S.  564,  28  Sup.  Ct.  Rep.  208, 
1&09),  172  Fed.  615;  Burley  v.  United  52  L.  Ed.  340. 

States  (C.  C.  A.),  179  Fed.  1. 


240  (3ded.)     Pt.  II.     CALIFORNIA  -  COLORADO  DOCTRINES.    '        §207 

prietor  would  under  the  California  doctrine  (having  arisen  in 
Montana,  where  the  State  law  in  fact  upholds  riparian  rights),25  in 
contrast  to  Krall  v.  United  States,  which  (being  decided  in  Idaho 
where  riparian  rights  are  rejected)1  considered  the  right  of  the 
reservation  to  be  analogous  rather  to  that  of  an  appropriator,  ex- 
tending only  to  the  amount  actually  used  at  the  time  of  a  private 
hostile  diversion.2  In  a  similar  case  arising  in  Montana  it  was 
also  held  by  the  United  States  circuit  court  of  appeals :  ' '  The  lands 
within  these  [Indian]  reservations  are  dry  and  arid,  and  require 
the  diversion  of  waters  from  the  streams  to  make  them  productive 
and  suitable  for  agricultural,  stock-raising  and  domestic  purposes. 
What  amount  of  water  will  be  required  for  these  purposes  may  not 
be  determined  with  absolute  accuracy  at  this  time,  but  the  policy 
of  the  government  to  reserve  whatever  water  of  Birch  Creek  may 
be  reasonably  necessary,  not  only  for  present  uses,  but  for  future 
requirements,  is  clearly  within  the  terms  of  the  treaties  as  con- 
strued by  the  supreme  court  in  the  Winters  case."  3  It  is  held  "it 
[the  government]  has  only  to  come  into  its  own  when  its  needs 
may  require,"  and  all  persons  seeking  appropriations  must  take 
subject  to  this  paramount  right,  though  in  nonuse,  and  only  surplus 
water  over  and  above  all  possible  needs  (though  not  now  used) 
even  in  the  future  of  the  Indian  reservation  is  subject  to  appro- 
priation.4 

The  matter  is  in  much  confusion  because  of  the  differing  views 
as  to  whether  local  law  governs;  and  if  it  does,  the  two  different 
views  of  what  the  local  law  is — whether  the  common  law  or  appro- 
priation. Taking  the  above  rulings  as  a  whole,  however,  the  view 
of  the  Federal  courts  seems  to  be  that  in  States  recognizing  riparian 
rights,  the  rights  incident  to  a  military  or  Indian  reservation  seem 
similar  to  those  of  a  riparian  owner,  not  limited  to  the  amount 

25  Supra,  sec.  117.  priation  of  water  passes  to  the  pur- 

1  Supra,  sec.  118.  chaser   as    an    appurtenance;    the   ef- 

2  See  United  States  v.  Winans,  198  feet   is   simply   to   again   throw   open 
U.  S.  371,  25  Sup.  Ct.  Rep.  662,  49  L.  the  waters  to  appropriation.     Nevada 
Ed.  1089.  etc.  Co.  v.  Bennett,  30  Or.  59,  60  Am. 

3  Decree  of  circuit  court  affirmed  in  St.  Rep.   777,   45  Pac.   472;   Story  v. 
Conrad     Inv.    Co.    v.    United    States  Wolverton,  31  Mont.  346,  78  Pac.  589. 
(Mont.  1908),  161  Fed.  829,  88  C.  C.  See,    also,    Morris    v.    Bean    (Mont.), 
A.    647.     So    it    has   been   held   that,  146   Fed.   432;    Bean   v.   Morris,    159 
since  the  government's  use  under  this  Fed.  651,  86  C.  C.  A.  519. 

view  is  not   one  by   "appropriation,"  •*  United  States  v.  Conrad  Inv.  Co., 

therefore  when  the  government  aban-  156  Fed.  123,  affirmed  in  Conrad  Inv. 

dons    the    reservation    and    sells    the  Co.  v.  United  States,  161  Fed.  829,  88 

land    to    private    parties,    no    appro-  C.  C.  A.  647. 


§§208,209  Ch.9.     WATERS  ON  PUBLIC  LAND.  (3ded.)  241 

in  use  by  the  reservation  by  actual  appropriation  at  any  specific 
time,  and  the  Federal  courts  in  their  opinions  do  not  expressly 
distinguish  between  classes  of  States,  but  seem  to  lay  down  the 
above  rule  for  all  States.  On  the  whole,  in  dealing  with  waters 
on,  or  use  by,  military  or  Indian  reservations,  the  tederal  courts 
resort  to  the  California  theory  of  the  proprietary  rights  of  the 
United  States  in  the  public  domain,  rather  than  to  the  Colorado 
theory  that  State  law  alone  governs.  (And  if  the  proprietary 
rights  of  the  United  States  are  recognized  beyond  actual  use,  it  can 
only  be  because  the  common  law  of  riparian  rights  is  regarded  as 
in  force  in  all  jurisdictions  as  to  the  United  States  itself,  at  least.) 
Military  and  Indian  reservations  are  in  exclusive  government 
occupancy,  wherein  they  may  possibly  differ  from  the  forest  and 
other  reserved  areas,  which  are  intended  to  be  open  to  the  people. 

(3d  ed.) 

§  208.    Rights  of  Way  Over  Military  and  Indian  Reservations. 

Because  of  the  position  of  the  United  States  as  an  actual  occupant, 
the  question  in  the  law-books  regarding  military  and  Indian  res- 
ervations has  been  chiefly  as  to  its  water-rights.  On  the  other  hand, 
the  act  creating  the  forest  reserves  expressly  declares  that  rights 
to  water  in  forest  reserves  shall  be  governed  by  State  law,  so  that 
questions  of  water-rights  are  there  eliminated,  and  the  question 
has  instead  been  made  chiefly  one  of  rights  of  way.  Consequently 
questions  of  rights  of  way  upon  military  and  Indian  reservations 
are  borrowing  their  law  from  that  being  developed  in  the  forest  re- 
serves, as  hereafter  considered.5 

It  has  been  held  that  rights  of  way  over  military  and  Indian 
reservations  can  be  obtained  only  under  the  ' '  Right  of  Way  Acts, ' ' 6 
implying  a  repeal  of  the  act  of  1866  so  far  as  concerns  such  res- 
ervations, in  exclusive  government  occupation.7 

(3d  ed.) 

§  209.  Forest  Domain— Extent  of.— The  act  of  March  3,  1891, 
authorized  the  President  to  establish  forest  reserves,  now  called 

6  Infra,  sec.  430  et  seq.,  how  an  ap-  Dec.  550.  Kern  River  Co.,  38  Land 
propriation  is  made — Federal  system.  Dec.  302. 

7  Regarding  irrigation   works  built 

t£iSta£§I^5?J!J'&?       ^    the    United    Stages    for    use    of 
131,  affirmed  in  161  Fed   829        ^.          OQ    reservati*         see    gession 

??  C*«?  &  T647i  7,ACC°/odi'  3«  ^n1  La™<  61st  Congress,  2d  Session 
Dee.  564;  27  Land  Dec.  421;  35  Land  (1910)>  c  uo>  an|  c<  '431>  8e(J  1?> 

Water  Rights — 1C 


242  (3ded.)     Pt.  II.     CALIFORNIA  -  COLORADO  DOCTRINES.  §210 

National  Forests.  The  first  created  was  the  Yellowstone  Park  Tim- 
ber Land  Reserve  proclaimed  by  President  Harrison  in  1891.  The 
matter  remained  much  in  abeyance  until  February,  1897,  when 
President  Cleveland  reserved  twenty-one  million  acres.  In  June 
of  that  year  the  Forest  Service  was  created  under  the  Interior  De- 
partment, being  by  act  of  February  1,  1905,  transferred  to  the 
Department  of  Agriculture.  The  reservation  of  timber  land  in- 
creased rapidly  by  executive  order,  allowed  in  the  act  of  Congress 
of  March  3,  1891,  under  which  practically  all  of  the  existing 
National  Forests  have  been  created  during  the  administrations  of 
President  Roosevelt.  In  an  act  of  March  4,  1907,  it  is  provided 
that  "hereafter  no  forest  reserve  shall  be  created,  nor  shall  any 
addition  be  made  to  one  heretofore  created  within  the  limits  of 
the  States  of  Oregon,  Washington,  Idaho,  Montana,  Colorado,  or 
Wyoming,  except  by  act  of  Congress."  The  power  of  the  Presi- 
dent to  create  or  enlarge  National  Forests  in  other  States  and 
in  the  Territories  is  unimpaired.  In  1910  the  area  in  the  forest 
domain  comprised  about  two  hundred  million  acres.  It  covers 
in  most  Western  States  a  large  portion  [such  as  in  California 
one-fourth]  of  the  State's  area.8 

The  law  of  forest  reserves  is  almost  wholly  in  the  making,  and 
anyone  dealing  with  rights  therein  should  acquaint  himself  with  the 
views  of  the  Forest  Service  by  direct  communication  with  its 
officers. 

(3d  ed.) 

§  210.  Waters  upon  Forest  Reserves. — The  Right  of  Way  Acts 
usually  provide  that  waters,  as  distinguished  from  rights  of  way, 
shall  remain  governed  by  State  law.8*  Thus  the  act  of  March 
3,  1891,9  provides  that  it  "shall  not  be  construed  to  interfere  with 
the  control  of  water  for  irrigation  and  other  purposes  under  the 
authority  of  the  respective  States  and  Territories,"  and  the  act 
of  February  26,  1897,10  provides,  "All  reservoir  sites  reserved  or 

8  Supra,  sec.  197.  capable  of  irrigation,  6,500,000  acres 

The    Territorial    Engineer   of   New  are    good    for    grazing,    and    400,000 

Mexico  said  in  Bulletin  215,  O.  E.  S.,  acres    are    waste    land."     Within    the 

United  States  Dept.   of  Agriculture:  last  year  there  has  been  some  re-ad- 

"The    eleven   national    forests   in   the  justment  to   eliminate  nonforest  land 

Territory  cover   some   8,500,000   acres  from  the  forest  reserves, 

of  the  best  timber  sections.     Of  this  8a  Supra,  sec.  176. 

amount  500,000  acres  are  made  up  of  9  26  Stat.,  c.  561,  p.   1095,  see.  18. 

fine    timber    and    1,000,000    acres    of  10  29  Stat.  599,  c.  335. 
dry-farming   land,   100,000   acres   are 


9  211  Ch.  9.     WATERS  ON  PUBLIC  LAND.  (3d  ed.)  243 

to  be  reserved  shall  be  open  to  use  and  occupation  under  the  Right 
of  Way  Act  of  March  third,  eighteen  hundred  and  ninety-one." 

The  act  creating  the  Forest  Service  declares:  "All  waters  on 
such  reservations  may  be  used  for  domestic,  mining,  milling  or 
irrigation  purposes,  under  the  laws  of  the  States  wherein  such 
forest  reservations  are  situated,  or  under  the  laws  of  the  United 
States  and  the  rules  and  regulations  established  thereunder."11 
The  Service  has  not  availed  itself  of  this  last  clause,  but  takes  the 
position,  as  yet,  that  the  States  shall  control  the  waters.  The  Ser- 
vice has,  however,  secured  enactment  by  Congress  directly  affecting 
waters  upon  the  Black  Hills  Forest  Reserve,  expressly  denying  to 
private  patentees  of  land  thereafter  granted  in  the  reserve  any 
riparian  rights  in  streams  flowing  over  such  land.12 

In  view  of  the  position  hitherto  taken  by  the  Forest  Service,  that 
it  has  no  jurisdiction  over  waters,  questions  which  concern  us  have 
arisen  in  regard  to  rights  of  way  and  reservoir  sites.  It  would 
seem,  however,  that  the  right  of  access  is  a  determinative  factor 
in  water  law,  and  that  control  of  access  to  streams  is  in  fact  control 
of  the  streams  themselves.13 

(3d  ed.) 

§  211.  Rights  of  Way  and  Reservoir  Sites  upon  Forest  Re- 
serves.— The  Forest  Service  rules  and  regulations  lay  down  a 
system  of  law  for  rights  of  way  and  reservoir  sites,  considered  at 
length  in  a  later  chapter.14 

11  A.    C.    June    4,    1897,    30    Stat.          13  Supra,  sec.  54;  infra,  sees.  225, 
11.  692,  access  to  waters. 

12  A.  C.  June  11,  1906,  34  Stat.  234.          14  Infra,  sec.  430  et  seq. 

§§  212-220.     (Blank  numbers.) 


244  (3ded.)     Pt.  H.     CALIFORNIA  -  COLORADO  DOCTRINES.  §221 


CHAPTER  10. 
APPROPRIATIONS  ON  PRIVATE  LAND. 

A.     RIGHTS  OF  WAY  CANNOT  BE  APPROPRIATED  OVER  PRIVATE 

LAND. 

§  221.     General  protection  of  private  land  against  ditch-building. 
§  222.     Consistently  the  California  law. 

§  223.     Early  conflict  in  the  Colorado  law — Yunker  v.  Nichols. 
§  224.     Yunker  v.  Nichols  no  longer  followed. 

§  225.     Access  to  the  stream  a  determinative  factor  in  the  law  of  water- 
courses. 
§  226.     Exception  in  favor  of  government  ditches. 

B.     WATER  ON  PRIVATE  LAND. 

§  227.     Difference  in  California  and  Colorado  as  to  water  on  private  land. 
§  228.     Water  flowing  over  or  by  private  land  cannot  be  appropriated  in 

California. 

§  229.     Authorities  quoted. 

§  230.     Water  partly  on  public  and  partly  on  private  land  in  California. 
§  231.     The  law  of  appropriation  of  diminishing  importance  in  California. 
§  232.     Water  on  private  land  in  Colorado. 
§  233.     Conclusions. 
§§  234-242.     (Blank  numbers.) 

A.     RIGHTS  OF  WAY  CANNOT  BE  APPROPRIATED  OVER  PRIVATE 

LAND. 

(3d  ed.) 

§  221.  General  Protection  of  Private  Land  Against  Ditch- 
building. — Despite  any  difference  under  the  Colorado  and  Cali- 
fornia doctrines  as  to  rights  in  water,  both  agree  to-day  that  an 
appropriator  must  have  lawful  access  to  the  stream  before  he  can 
exercise  water-rights.  Upon  public  land  the  United  States  is  to-day 
enforcing  this  principle  by  withdrawing  the  land,  as  set  forth  in 
the  preceding  chapter;  as  to  private  land  the  principle  is  to-day 
equally  clear  from  the  decisions,  which  now  in  all  jurisdictions  hold 
that  an  entry  upon  private  land  to  build  ditches  or  dams  or  other 
structures  or  work  is  a  plain  trespass  and  unlawful,  like  any 
trespass  upon  private  property.  An  appropriation  cannot  be  initi- 
ated unlawfully  by  a  trespass  upon  private  land,  and  no  rights 
can  be  obtained  thereby  against  the  landowner  whose  land  is 


§221 


Ch.  10.     WATERS  ON  PRIVATE  LAND. 


(3ded.)  245 


trespassed  upon,  in  any  jurisdiction.1     The  supreme  court  of  the 
United  States  held  that  an  appropriator  could  not  build  a  ditch 


i  Arizona. — Boquillas  etc.  Co.  v. 
Curtis  (Ariz.,  1909),  213  U.  S.  339, 
29  Sup.  Ct.  Rep.  493,  52  L.  Ed.  822. 
Compare  Biggs  v.  Utah  etc.  Co.,  7 
Ariz.  331,  64  Pac.  494. 

California. — Vestal  v.  Young,  147 
Cal.  715,  721,  82  Pac.  381,  383 ;  Lux  v. 
Haggin,  69  Cal.  255,  336,  344,  368,  10 
Pac.  674;  Weimar  v.  Lowery,  11  Cal. 
104,  4  Morr.  Min.  Rep.  543;  Correa  v. 
Frietas,  42  Cal.  339,  2  Morr.  Min. 
Rep.  336;  Titcomb  v.  Kirk,  51  Cal. 
288,  5  Morr.  Min.  Rep.  10;  Last 
Chance  etc.  Co.  v.  Heilbron,  86  Cal.  1, 
26  Pae.  523;  Walker  v.  Emerson,  89 
Cal.  456,  26  Pac.  968;  Ball  v.  Kehl, 
95  Cal.  606,  30  Pac.  780;  Taylor  v. 
Abbott,  103  Cal.  421,  37  Pac.  408; 
McGuire  v.  Brown,  106  Cal.  660,  670, 
39  Pac.  1060,  30  L.  R.  A.  384;  Los 
Angeles  v.  Pomeroy,  125  Cal.  420,  58 
Pac.  69;  Davis  v.  Martin,  157  Cal. 
657,  108  Pac.  866. 

Colorado. — Stewart  v.  Stevens,  10 
Colo.  445,  15  Pac.  786;  Crisman  v. 
Heiderer,  5  Colo.  596;  Tripp  v.  Over- 
acker,  7  Colo.  75,  1  Pac.  695;  Down- 
ing v.  More,  12  Colo.  318,  20  Pac. 
766;  Boglino  v.  Giorgetta,  20  Colo. 
App.  338,  78  Pac.  612;  Nippel  v. 
Forker,  9  Colo.  App.  106,  47  Pac.  766, 
affirmed  in  26  Colo.  74,  56  Pac.  577; 
Blake  v.  Boye,  33  Colo.  55,  88  Pac. 
470,  8  L.  R.  A.,  N.  S.,  418;  Baldridge 
v.  Leon  etc.  Co.,  20  Colo.  App.  518, 
80  Pae.  477;  Sternberger  v.  Seaton 
etc.  Co.  (1909),  45  Colo.  401,  102  Pae. 
168;  Welty  v.  Gibson,  42  Colo.  18,  93 
Pac.  1093;  United  States  etc.  Co.  v. 
Gallegos,  89  Fed.  770,  32  C.  C.  A.  470'; 
Snyder  v.  Colorado  etc.  Co.  (Colo.  C. 
C.  A.),  181  Fed.  62. 

Idaho. — Le  Quime  v.  Chambers,  15 
Idaho,  405,  98  Pac.  415,  21  L.  R.  A., 
N.  S.,  76;  Swank  v.  Sweetwater  Irr. 
Co.,  15  Idaho,  353,  98  Pac.  297.  See 
Stats.  1911,  c.  230  (lakes). 

Montana. — Noteware  v.  Stearns,  1 
Mont.  311,  4  Morr.  Min.  Rep.  650; 
Smith  v.  Dcnniff,  24  Mont.  20,  81  Am. 
St.  Rep.  408,  60  Pac.  398,  50  L.  R.  A. 
741;  Prentice  v.  McKay,  38  Mont. 
114,  98  Pac.  1081. 

New  Mexico. — Vanderwork  v.  Hewes 
(N.  M.),  110  Pac.  567. 

Nebraska. — Rasmussen  v.  Blust,  83 
Neb.  678,  120  N.  W.  184,  S.  C.,  85 
Neb.  198,  133  Am.  St.  Rep.  650,  122 


N.  W.  862.  Injunction  is  the  proper 
remedy  for  preventing  one  without 
authority  so  to  do  from  crossing  the 
canal  of  an  irrigation  company  with 
a  lateral  for  the  purpose  of  carrying 
water  to  his  land  from  another  canal. 
Castle  Rock  Irr.  Co.  v.  Jurisch,  67 
Neb.  377,  93  N.  W.  690. 

Texas. — See  Toyaho  etc.  Co.  v. 
Hutchins,  21  Tex.  Civ.  App.  274,  52 
S.  W.  101. 

Utah. — Willow  etc.  Co.  v.  Michael- 
son,  21  Utah,  248,  81  Am.  St.  Rep. 
687,  60  Pac.  943,  51  L.  R.  A.  280; 
Stalling  v.  Ferrin,  7  Utah,  477,  27 
Pac.  686. 

Washington. — Weidensteiner  v.  Mal- 
ly,  55  Wash.  79,  104  Pac.  143;  Atkin- 
son v.  Washington  Irr.  Co.,  44  Wash. 
75,  120  Am.  St.  Rep.  978,  86  Pac. 
1123. 

Wyoming. — Sterritt  v.  Young,  14 
Wyo.  146,  116  Am.  St.  Rep.  994,  82 
Pac.  946,  4  L.  R.  A.,  N.  S.,  169;  Mc- 
Phail  v.  Forney,  4  Wyo.  556,  33  Pac. 
773;  Healy  v.  Smith,  14  Wyo.  263, 
116  Am.  St.  Rep.  1004,  83  Pac.  583. 
Compare  Mcllquhoun  v.  Anthony  etc. 
Co.  (Wyo.),  104  Pac.  20. 

United  States  Supreme  Court. — 
In  Boquillas  etc.  Co.  v.  Curtis,  213 
U.  S.  339,  29  Sup.  Ct.  Rep.,  at  page 
495,  53  L.  Ed.  822,  a  case  upholding, 
in  Arizona,  the  rejection  of  the  com- 
mon law  of  riparian  rights,  the  court 
recognizes  the  principle,  though  the 
facts  of  the  case  did  not  involve  it. 
Mr.  Justice  Holmes  said:  "A  final 
objection  urged  is  that  the  plaintiff's 
land  is  taken  without  compensation. 
It  would  seem  that  this  is  merely 
technical  in  this  case.  There  does  not 
appear  to  have  been  any  discussion 
of  the  point  below,  and  it  is  probable 
that  the  water  is  the  only  thing  that 
has  substantial  value  or  really  is 
cared  for.  But  the  plaintiff  is  author- 
ized to  have  his  damages  assessed  if 
he  desire  by  chapter  55,  section  4 
(now  Rev.  Stats.,  sec.  3202),  as  we 
have  mentioned.  We  think  that  it 
would  be  unjust  to  disturb  the  decree 
on  this  ground,  although  in  other  cir- 
cumstances the  objection  might  be 
grave."  See,  also,  Jennison  v.  Kirk, 
98  U.  S.  453,  25  L.  Ed.  240,  4  Morr. 
Min.  Rep.  504;  Sturr  v.  Beck,  133  U. 


246  (3ded.)     Pt.  II.     CALIFORNIA  -  COLORADO  DOCTRINES.  §222 

over  a  prior  located  mining  claim,  or,  if  he  does,  the  hydraulic 
miner  may  wash  it  away.2 

This  applies  equally  to  changes  in  point  of  diversion,  place  of 
use,  means  of  use,  or  purpose  of  use,  where  land  that  was  public 
at  the  time  of  creating  the  appropriation  has  passed  into  private 
hands  at  the  time  of  the  change.  While  the  appropriator  may 
change  his  place  of  diversion,  manner,  means,  place  and  purpose 
of  use  at  will  upon  public  land,  yet  if  in  any  way  this  injures 
rights  already  in  private  hands  (and  a  change  is  per  se  an  injury 
on  private  land)  ,3  it  cannot  be  done  at  all ; 4  and  a  change  of  a 
ditch  originally  built  upon  public  land  to  another  place  on  the 
land,  or  an  enlargement  of  it  after  the  land  has  passed  into  private 
hands,  is  absolutely  prohibited.5 

A  permit  from  the  Secretary  of  the  Interior  or  from  the  State 
Engineer  is  of  no  avail.6 

Rights  of  way  over  private  land  may,  of  course,  be  obtained  by 
condemnation  for  public  use,  and  under  a  recent  decision  of  the 
supreme  court  of  the  United  States,  this  applies,  under  certain 
circumstances,  to  a  ditch  built  for  one's  private  irrigation  alone; 
as  considered  at  length  in  the  chapter  upon  eminent  domain.7 

(3d  ed.) 

§  222.  Consistently  the  California  Law. — The  general  prin- 
ciple was  early  established  in  California  that  the  law  of  possessory 
rights  (that  is,  the  law  of  appropriation)  applied  only  to  vacant, 
unoccupied  public  domain,  and  must  infringe  nothing  to  which 
private  rights  had  already  attached  at  the  time  of  the  appropria- 
tion. Miners  could  not  appropriate  water  already  claimed  by  other 
private  parties,  even  though  not  miners ;  no  mines  could  be  located 
for  mineral  upon  lands  owned  by  private  parties ; 8  no  water  could 

S.  541,  10  Sup.  Ct.  R«p.  350,  33  L.  Ed.  Young,    147   Cal.    721,    82   Pac.    383 ; 

761.  Weidensteiner      v.       Mally       (1909), 

See,   also,   cases   infra,   sec.   259   et  55  Wash.  79,  104  Pac.  143;  Welty  v. 

seq.,  "prior  settlers,"  and  infra,  sees.  Gibson,   42    Colo.    18,   93    Pac.    1093 ; 

498,  499,  502,  505,  "change  of  ditch  or  Snyder  v.  Colorado  e£c.  Co.   (C.  C.  A. 

point  of  diversion."  Colo.),  181  Fed.  62. 

2  Jennison   v.   Kirk,   98  II.   S.  453,  6  Baldridge    v.    Leon    etc.    Co.,    20 
25  L.  Ed.  240,  4  Morr.  Min.  Rep.  504;  Colo.  App.  518,  80  Pac.  477;  Vander- 
Miocene  etc.  Co.  v.  Jacobson,  2  Alaska,  work  v.  Hewes  (N.  M.),  110  Pac.  567. 
573.  See  infra,  sees.   1193,  1194,  authority 

3  Vestal  v.  Young,  infra.  of  State  Engineer;  vested  rights  pro- 

4  Infra,  sec.  498  et  seq.  tected. 

5  Ibid.     See,   especially,  McGuire  v.  7  Infra,  sec.  607  et  seq. 

Brown,   106   Cal.   660,   39   Pac.    1060,  8  Boggs  v.  Merced  M.  Co.,  14  Cal. 

30  L.  R.  A.  384;  Vestal  v.  Young,  147       279.  10  Morr.  Min.  Rep.  334. 
Cal.    715,    82    Pae.    381;    Vestal    v. 


§  223  Ch.  10.     WATERS  ON  PRIVATE  LAND.  (3d  ed.)  247 

be  diverted  from  private  land  over  which  it  flowed.9  The  Califor- 
nia court  always  guarded  against  the  extension  to  private  land  of 
the  peculiar  character  of  rights  on  the  public  domain  lest  "its 
practical  application  would  result  in  a  system  of  judicial  condemna- 
tion of  the  property  of  one  citizen  to  answer  an  assumed  paramount 
necessity  or  convenience  of  another  citizen. ' ' 10 

The  act  of  Congress  of  1866,.  upon  which  the  law  of  appropria- 
tion in  California  rests,  expressly  declares  that  the  doctrine  shall 
not  apply  to  allow  entries  on  private  land,  for  it  says :  ' '  But  when- 
ever any  person,  in  the  construction  of  any  ditch  or  canal,  injures 
or  damages  the  possession  of  any  settler  upon  the  public  domain, 
the  party  committing  such  injury  or  damage  shall  be  liable  to  the 
party  injured  for  such  injury  or  damage,"11  and,  though  it  has 
been  contended  to  be  a  permission  to  enter  on  payment  of  dam- 
ages, like  the  early  California  Possessory  and  Indemnity  Acts,12 
the  contention  failed,  as  did  those  early  California  acts,  and  the 
provision  instead  was  held  to  prohibit  entries  on  private  land  (even 
possessory  agricultural  claims)  absolutely,  so  far  as  it  lay  with 
Congress.13 

The  landowner  need  show  no  actual  damage  against  the  tres- 
passer ;  it  is  enough  that  his  land  is  being  entered  upon ;  the  rule  of 
injuria  sine  damno  applies.14 

(3d  ed.) 

§  223.  Early  Conflict  in  the  Colorado  Law — Yunker  v.  Nich- 
ols.— But  the  early  law  of  the  younger  States,  under  the  lead  of 
Colorado,  diverged  widely  from  this.  Instead  of  appropriators,  as 
trespassers  on  public  land,  having,  as  in  early  California,  to  defend 
themselves  against  the  "legitimate"  title  of  land  patents,  the  ques- 
tion arose  in  Colorado  only  after  that  protection  was  given  by 

9  Crandall  v.  Woods,  8  Cal.  136,  1      Right  of  Way  Act  of  March  3,  1891 
Morr.  Min.  Rep.  604.  (A.    C.    26    Stats.    1095),    providing, 

10  Gregory  v.  Nelson,  41   Cal.   278,       "Whenever  any  person  or  corporation 
at  290,  12  Morr.  Min.  Rep.  124.  in  the  construction  of  any  canal,  ditch, 

11  U.  S.  Rev.  Stats.,  sec.  2339.  or   reservoir   injures   or   damages   the 

12  Supra,  sec.  85.  possession  of  any  settler  on  the  public 
is  Jennison  v.  Kirk,  98  U.  S.  453,       domain,    the    party    committing    such 

25  L.  Ed.  240,  4  Morr.  Min.  Rep.  504;  injury   or   damage   shall   be  liable   to 

MeGuire  v.   Brown,   106   Cal.   668,   39  the  party  injured  for  such  injury  or 

Pac.  1060,  30  L.  R.  A.  384.     See,  also,  damage." 

as  to  this  proviso,   Titcomb  v.   Kirk,  14  Vestal   v.   Young,    147   Cal.   715, 

51   Cal.   288,  5   Morr.   Min.  Rep.   10;  82    Pac.    381,   and   Vestal   v.    Young, 

Jacob  v.  Lorenz,  98  Cal.  335,  33  Pac.  147  Cal.  721,  82  Pac.  383,  and  infra, 

119;    Woodruff    v.    North    Bloomfield  sec.  642. 

Co.,  18  Fed.  753,  9  Saw.  441.  See,  generally,   the   historical  chap- 

The   same   proviso    appears    in   the  ter,  supra,  c.  5. 


248   (3ded.)     Pt.  II.     CALIFORNIA  -  COLORADO   DOCTRINES.  §223 

the  act  of  1866,  and  then  private  landowners  or  patentees  were,  in 
the  younger  States,  hard  put  to  it  to  defend  themselves  against 
appropriators;  for  the  law  in  these  younger  States  proceeded  to 
raise  appropriators  over  the  landowners  in  all  respects. 

Early  cases  in  Colorado  had  held  that  an  appropriation  could 
always  be  made  on  private  land,  even  against  the  will  of  the  land- 
owner. The  first  case  in  Colorado  upon  waters  involved  this  point 
of  violating  private  land  by  irrigators,  the  case  of  Yunker  v. 
Nichols.15  In  this  case  the  three  judges  gave  separate  opinions,  as 
follows:  "But  here  the  law  has  made  provision  for  this  necessity 
by  withholding  from  the  landowner  the  absolute  dominion  of  his 
estate,  which  would  enable  him  to  deny  the  right  of  others  to  enter 
upon  it  for  the  purpose  of  obtaining  needed  supplies  of  water. 
....  It  may  be  said  that  all  lands  are  held  in  subordination  to 
the  dominant  right  of  others,  who  must  necessarily  pass  over  them 
to  obtain  a  supply  of  water  to  irrigate  their  own  lands,  and  this 
servitude  arises,  not  by  grant,  but  by  operation  of  law."  Per 
Judge  Hallett,  who  seems  to  have  thought  that  a  certain  statute  16 
allowed  this  without  condemnation.  But  .Belford,  J.,  places  the 
decision  on  the  ground  that  on  the  facts  there  was  a  license  to 
build  the  ditch,  which,  being  acted  upon,  was  irrevocable  in  equity, 
and  this  was  a  proper  treatment  of  the  case.  He  adds,  however, 
some  words  similar  to  those  above  quoted  from  Judge  Hallett,  but 
in  a  vein  that  indicates  that  he  thought  it  was  in  some  analogy  to 
eminent  domain  proceedings:  "The  construction  of  a  ditch  for 
irrigating  purposes  seems  to  me  to  rest  on  principles  analogous  to 
those  which  sustain  the  right  of  a  private  way  over  the  land 
of  another,"  but  thinks  that  condemnation  procedure  may  be 
waived  by  the  acts  of  the  parties,  and  says  it  was  so  in  this  case ; 
but  then  again  adds  that  he  justifies  his  decision  on  the  ground  of 
necessity,  though  "I  am  fully  aware  that  courts  should  be  slow  to 
justify  their  decisions  on  the  ground  of  necessity."  Wells,  J.,  says 
that  the  decision  should  be  placed  solely  on  the  ground  that  each 
landowner  has  a  right  of  way  of  necessity  across  the  land  of  another 
to  water.  (Similar  decisions  were  made  in  other  early  cases.)17 
Statutes  have  been  passed  to  the  same  effect.18 

15  1   Colo.  551,   8  Morr.  Min.   Rep.  17  Schilling    v.    Rominger,    4    Colo. 
64.                                                                       104,    109;    Branagan    v.    Dulaney,    8 

16  Laws  of  1861,  page  67,  Revised       Colo.  413,  8  Pac.  669. 

Statutes,  363.     This  act  is  more  par-  i«  Statutes    enacting    the    principle 

ticularly  considered  suprar  see.  119.          of  Yunker  v.  Nichols,  that  is,  of  gen- 


§224  Ch.  10.     WATERS  ON  PRIVATE  LAND.  (3ded.)249 

Another  ground  on  which  this  universal  right  of  entry  on  pri- 
vate land  to  divert  streams  for  irrigation  was  given  19  as  being  that 
the  United  States,  by  sanctioning  the  law  of  appropriation,  not  only 
reserved  from  its  land  grants  existing  appropriations  and  diver- 
sions, but  also  a  right  of  entry  for  any  member  of  the  public  in 
the  future  to  make  appropriations  thereafter. 

(3d  ed.) 

§  224.  Yunker  v.  Nichols  No  Longer  Followed. — The  weight  of 
authority  in  Colorado  and  similar  jurisdictions  now  clearly  de- 
clares that  the  foregoing  is  no  longer  the  law. 

In  Crisman  v.  Heiderer  20  it  was  held  that  the  decision  in  Yunker 
v.  Nichols  should  be  confined  "to  the  narrowest  limits";  adding, 
"it  has  been  well  said  that  the  necessity  of  one  man's  business 
cannot  be  made  the  standard  of  another  man's  right."  And  since 
the  adoption  of  the  constitution  this  is  recognized  in  Colorado  as  a 
taking  of  property  that  can  be  done  only  by  condemnation  on 
eminent  domain  proceedings,  now  specially  provided  for  such 
cases.21  In  a  ease  construing  the  law  of  Colorado,  the  United 
States  circuit  court  of  appeals  says:  "The  appellant  owns  all  the 
land  on  both  banks  of  this  river.  Regardless  of  its  right  to  the 
water,  it  has  the  undoubted  right  to  the  undisturbed  and  exclusive 
possession  of  its  land;  and  the  appellees  can  divert  no  water  with- 
out entering  upon  and  leading  it  across  this  land  and  committing  a 
continuing  trespass  upon  it."  Injunction  granted,22  adding  that 

eral   free   right   of   entry   on   private  Sovdh    Dakota. — Rev.     Codes,    Pol. 

land  to   build  irrigation  works  or  to  Code,  sec.  2564. 

change  or  enlarge  existing  works  with-  Washington. — Pierce's     Codes,     sec. 

out  consent  or  compensation:  5124  et  seq. 

Arizona. — Const.,  art.  1,  sec.  17,  is  Wyoming. — See   Sterritt   v.    Young, 

similar  in  this  to  that  of  Colorado.  14  Wyo.  146,  116  Am.  St.  Rep.  994,  82 

Colorado.— M.    A.    S.,    sees.    2256,  Pac.  946,  4  L.  R.  A.,  N.  S.,  169. 

2257,   2261,   2263,    3158;    Const.,   art.  This  list  is  probably  not  complete. 

2,    sec.    14.     But    see    Const.,    art.    2,  Compare  the  statutes  infra,  enact- 

sec.  15;  art.  16,  sec.  7;  M.  A.  S.,  sees.  ing  the  principle  of  Clark  v.  Nash,  ex- 

2256,  3158.  tending  the  power  of  eminent  domain 

Idaho. — McLean's  Idaho  Rev.  Codes,  to  private  ditch  building,  making  corn- 
sees.  3300,  3305 ;  Rev.  Stats.  1887,  sec.  pensation.    Infra,  sec.  609. 
3181;  Civil  Code,  sec.  2549  et  seq.;  11  19  Tynon  v.  Despain,  22  Colo.  240, 
Terr.  Sess.  (1881)  269;  Laws  1889,  p.  43  pac.  1039. 
380,  sec.  10.  20  5  r  ,      ,-q6 

Montana.— Comp.    Stats.    1887,   sec. 

1240.     But  see  Prentice  v.  McKay,  38  21  Stewart  v.  Stevens,  10  Colo.  445, 

Mont.  114,  98  Pac.  1081.  15  Pac-  786- 

North  Dakota.— Comp.  Laws   1887,  22  United    States    etc.    Co.    v.    Gal- 
sec.  2030.  legos,  89  Fed.  770,  32  C.  C.  A.  470. 

Oklahoma. — Const.  1907,  art.  2,  sec.  Accord,  Snyder  v.  Colorado  etc.  Co. 

23.  (Colo.  C.  C.  A.),  l&l  Fed.  62. 


250   (3ded.)     Pt.  II.     CALIFORNIA  -  COLORADO   DOCTRINES.  §224 

nothing  in  the  constitution  or  statutes  of  Colorado  gives  one  the 
right  to  make  an  appropriation  against  a  landowner  by  trespassing 
on  his  land;  and  the  State  courts  of  Colorado  now  also  so  hold.23 
In  one  recent  case  24  it  was  held  that  even  an  act  of  Congress  25 
gives  no  right  over  private  land,  even  though  filings  were  approved 
by  the  Secretary  of  the  Interior.  Yunker  v.  Nichols  is  confined 
to  the  point  of  executed  parol  license,  which  is  all  it  really  decided.1 

The  case  above  referred  to  as  asserting  a  reserved  right  of  entry 
as  a  matter  of  construction  of  Federal  land  grants  was  explained 
away,2  as  being  decided  upon  the  fact  of  priority  of  the  ditch 
to  the  time  of  vesting  of  the  land  grant,  and  not  as  permitting  an 
entry  subsequent  to  such  vesting,  or  as  declaring  private  lands 
subject  to  indiscriminate  irrigation  ditches  in  the  future.3 

In  a  recent  Colorado  case  it  was  strongly  said  that  the  right 
to  build  a  ditch  over  another's  private  lands  is  an  entirely  different 
question  from  that  of  riparian  right  to  water;  and  that  if  defend- 
ant has  taken  plaintiff's  land  for  a  right  of  way  for  a  ditch, 
plaintiff  may  obtain  appropriate  relief  in  court,  irrespective  of  any 
question  of  plaintiff's  right  to  the  water.4  Another  recent  ruling 
in  the  Federal  court  for  Colorado  is  that  if  a  ditch  is  wrongfully 
built  upon  private  land,  it  is  entitled  to  no  protection  against 
tunneling  by  the  landowner,  causing  seepage  from  the  ditch.5  In 
Idaho  it  was  recently  likewise  said:  "If  the  land  on  which  this 
spring  was  located  had  already  been  patented  before  the  location 
by  appellants,  then  a  different  question  would  arise,  because  appel- 
lants would  have  been  trespassers  in  entering  upon  the  land  for 
the  purpose  of  locating,  appropriating,  and  diverting  the  water 
unless  they  first  had  acquired  a  license  or  easement  so  to  do. "  ° 

23  Cases  cited  at  the  beginning  of          *  Sternberger    v.    Seaton    etc.    Co. 
this  chapter.  (1909),  45  Colo.  401,  102  Pac.  168. 

24  Baldridge   v.    Leon    etc.    Co.,    20  5  Snyder   v.   Colo.   etc.    Co.    (C.    C. 
Colo.  App.  518,  80  Pac.  477.  A.),  181  Fed.  62. 

25  Of  March  3,  1891.  6  Le  Quime  v.  Chambers,  15  Idaho, 

1  Morrison's    Mining    Rignts,    12th  405,  98  Pac.  415,  21  L.  R.  A.,  N.  S., 
ed.,  p.  185 ;  Mills  on  Irrigation,  p.  273,  76.     In  another  late  Idaho  case  it  was 
note  17.     As  to  executed  parol  license,  held  that   the   fact   that   a   party  has 
see  infra,  sec.  556.  located  a  water-right  and  filed  his  no- 

2  Tynon  v.  Despain  as  construed  in  tice   thereof   in    accordance    with   law 
Blake  v.   Boye,  38   Colo.   55,   88   Pac.  does  not  give  him  any  right  to  build 
470,  8  L.  R.  A.,  N.  S.,  418.     See,  also,  ditches  and  canals  across  the  lands  of 
Atkinson     v.     Washington     Irr.     Co.,  others  until  he  has  acquired  the  ease- 
44  Wash.   75,  120  Am.  St.  Rep.  978,  ment  and  right  of  way  therefor  either 
86  Pae.  1123.  by    purchase    or    condemnation.     The 

3  M.  A.  S.   (Colo.),  see.  3158,  pro-  ownership   of  a   water-right   does   not 
hibits  building  a  ditch  over  a  mining  necessarily   imply  that   the   ownership 
claim  without  condemnation.  of  the  ditch  through  which  the  water 


§  224  Ch.  10.     WATERS  ON  PRIVATE  LAND.  (3d  ed.)  251 

This  applies  to  enlarging  an  existing  ditch  upon  private  land, 
as  well  as  to  building  a  new  one  there.7 

That  an  appropriation  cannot  be  made  by  hostile  entry  upon 
private  land  is  also  held  in  Utah,8  and  in  other  States  generally, 
as  cited  at  the  beginning  of  this  chapter.9 

A  recent  case  in  Montana  says:  "The  United  States  and  the 
State  of  Montana  have  recognized  the  right  of  an  individual  to 
acquire  the  use  of  water  by  appropriation ; 10  but  neither  has  au- 
thorized, nor,  indeed,  could  authorize,  one  person  to  go  upon  the 
private  property  of  another  for  the  purpose  of  making  an  appro- 
priation, except  by  condemnation  proceedings.  The  general  gov- 
ernment has  merely  authorized  the  prospective  appropriator  to  go 
upon  the  public  domain  for  the  purpose  of  making  his  appropria- 
tion, and  the  statutes  of  this  State  only  apply  to  appropriations 
made  on  the  public  lands  of  the  United  States  or  of  the  State,  and 
to  such  as  are  made  by  individuals  who  have  riparian  rights  either 
as  owners  of  riparian  lands  or  through  grants  from  such  owners. 
This  is  the  doctrine  announced  in  Smith  v.  Denniff,11  where  the 
court  further  said:  'A  trespasser  on  riparian  land  cannot  lawfully 
exercise  there  any  right  to  such  water  or  acquire  any  right  therein 
by  virtue  of  section  1880  et  seq.  of  the  Civil  Code  of  1895. ' 12  In 
the  same  opinion  this  court  also  said:  'One  may  not  acquire  a 

flows   is   vested   in    the   same   person.  segregated    from    the    public    domain 

Swank    v.    Sweetwater    Irr.    Co.,    15  and  the  title  thereto  has  passed  into 

Idaho,  353,  98  Pae.  297,  the  court  say-  private  ownership."     Willow  Creek  etc. 

ing:    "The   fact   that   a   party   has   a  Co.   v.   Michaelson,   21   Utah,   248,   81 

water-right  gives  him  no  right  to  enter  Am.  St.  Rep.  687,  60  Pac.  943,  51  L. 

the   lands   of   others   for  the   purpose  R.  A.  280.     See,  also,  Stalling  v.  Fer- 

of    constructing    ditches    and    canals  rin,   7   Utah,   477,   quoted   supra,  sec. 

across  them,  except  over  public  lands  185. 

of   the   United    States.     He   must   ob-  9  Compare    the    Wyoming    case    of 

tain  that  easement  and  right  of  way  Mcllquhoun  v.  Anthony  etc.  Co.  (Wyo. 

either  by  purchase  or  condemnation."  1909),    104    Pac.    20,    where    it    was 

7  Welty  v.  Gibson,  42  Colo.   18,  93  claimed  that  public  policy  gave  cattle 
Pac.  1093;  Snyder  v.  Colorado  etc.  Co.  and   sheep   men   a  right   of  way  over 
(C.  C.  A.  Colo.),  181  Fed.  62.    Infra,  private    land    in    Wyoming    to    reach 
sec.  496  et  seq.,  "changes."  grazing  lands  on  the  public  domain; 

8  Section   2780,   Compiled   Laws   of  but  the  court  held  to  the  contrary. 
Utah  of   1888,  provided  that  a  "nat-  10  Citing,    inter    alia,    U.    S.    Rev. 
ural   stream   or   other   natural   source  Stats.,  sees.  2339,  2340   (U.  S.  Comp. 
of    supply"    could    be    appropriated.  Stats.    1901,    p.    1437)  ;    Mont.    Rev. 
The  court  construed  this  to  mean  one  Codes,  sec.  4840  et  seq. 

"flowing  or  situated  upon  lands  over  n  24    Mont.   22,   81    Am.    St.   Rep. 

which  the  sovereignty,  has  domain,  or  408,  60  Pac.  398,  50  L.  R.  A.  741. 

which    forms    a    part    of    the    public  12  Citing  section  4840  et  seq.,  Rev. 

domain,  and  not  to  streams  or  springs  Codes.     Alta  Land  Co.  v.  Hancock,  85 

or   other    waters    rising   through    per-  Cal.  219,  20  Am.  St.  Rep.  217,  24  Pac. 

eolation  upon  land  after  it  has  been  645. 


252   (3d  eel.)     Pt.  II.     CALIFORNIA  -  COLORADO   DOCTRINES. 


§225 


water-right  on  the  land  of  another  without  acquiring  an  easement 
in  such  land. '  "  13 

Such,  also,  was  the  civil  law,14  and  the  early  New  Mexico  law 
based  thereon.15 

(3d  ed.) 

§  225.  Access  to  the  Stream  a  Determinative  Factor  in  the 
Law  of  Watercourses. — Concerning  the  principle  of  Tunker  v. 
Nichols,  which  does  not  now  seem  in  force  anywhere,  it  is  said  16 
to  have  placed  a  grievous  burden  upon  the  ownership  of  valley 
lands  because  of  "the  liability  to  which  his  land  is  exposed  of 
having  ditches  or  canals  constructed  across  it  without  his  consent, 
for  the  purpose  of  conducting  water  from  the  stream  to  more  dis- 
tant lands."  Oommenting  upon  a  statute  enacting  the  principle 
the  same  writer  says — that  it  "is  invalid  seems  hardly  to  admit 
of  doubt. ' ' 17  Such  attempted  reservation  from  land  titles  in  favor 
of  indiscriminate  irrigation  ditch  building  in  the  future  is  similar 
to  the  attempted  reservation  in  the  early  California  Possessory  Act 
in  favor  of  miners ;  and  the  refusal  of  the  Colorado  court  to  adhere 
to  it  is  like  the  refusal  of  the  California  court  to  give  full  force 
to  the  Possessory  Act.18  It  was  rather  a  socialistic  doctrine,  for- 


13  Prentice  v.  McKay,  38  Mont.  114, 
198  Pac.  1081. 

14  "If   the   acequia   shall   cross   the 
land  of  another,  or  the  crown  lands,  or 
the  land  common  to  the  inhabitants  of 
the  pueblo,  a  license  from  the  private 
owner,  or  from  the  king,  or  from  the 
town  council,  is  indispensable."     Esch- 
riche,    "Acequia" — quoted    in    Lux    v. 
Haggin,  69  Cal.  255,  10  Pac.  674. 

The  Spanish  Philippine  Code  con- 
tained in  articles  407  to  425  the  usual 
civil-law  provisions  concerning  waters. 
Article  414  provided:  "No  one  may 
enter  private  property  in  search  of 
waters,  or  make  use  of  them  without 
permission  from  their  owners." 

15  In  New  Mexico  Compiled  Laws, 
section  17    (enacted  in  1874),  it  was 
provided  that  "all  of  the  inhabitants 
of  the  Territory  of  New  Mexico  shall 
have  the  right  to  construct  either  pri- 
vate or  common  acequias,  and  to  take 
the    water    for    said    acequias    from 
wherever  they   can,  with   the   distinct 
understanding     to     pay     the     owner 
through  whose  land  said  acequias  have 
to  pass    a  just  compensation   for  the 
land    used,"    evidently    meaning    emi- 
nent domain  condemnation. 


16  Black's  Pomeroy  on  Water  Rights, 
p.  222. 

"  Ibid.,  p.  207. 

Substituting  in  the  following  the 
word  "appropriatable"  for  "naviga- 
ble," a  succinct  statement  of  the  rule 
is  deduced.  "But  as  these  so-called 
navigable  ('appropriatable')  waters 
are  wholly  surrounded  by  the  lands  of 
plaintiff,  and  as  it  is  not  asserted  and 
indeed  it  would  require  much  rashness 
and  temerity  to  assert,  that  the  public 
has  a  right  to  invade  and  cross  pri- 
vate lands  to  reach  navigable  ('appro- 
priatable') waters,  a  lawful  mode  of 
ingress  and  approach  to  these  navi- 
gable ('appropriatable')  waters  be- 
came necessary."  Mr.  Justice  Hen- 
shaw,  in  Bolsa  etc.  v.  Burdick,  151 
Cal.  254,  90  Pac.  532,  12  L.  R.  A., 
N.  S.,  275. 

18  Supra,  sec.  85. 

"What  value  would  there  be  to  a 
title  in  one  man,  with  a  right  of  in- 
vasion in  the  whole  world?"  Judge 
Field  asked  in  Boggs  v.  Merced  Min. 
Co.,  14  Cal.,  at  379,  10  Morr.  Min. 
Rep.  334. 


§  225  Ch.  10.     WATERS  ON  PRIVATE  LAND.  (3d  ed.)   253 

getting  that  we  have  constitutions  guaranteeing  private  property 
rights,  to  say  that  if  you  want  another  man's  property  badly 
enough  you  have  only  to  take  it,  or  that  a  court  will  listen  to  an 
argument  that  you  have  a  greater  desire  or  necessity  to  possess 
my  property  than  I  have.  If  it  is  for  a  public  purpose  and  you 
pay  for  it,  yes;  and  that  the  law  allows  to-day.19 

The  right  to  be  protected  in  the  use  of  water  as  an  incident  to 
the  land  (the  riparian  right)  is,  as  in  the  next  section  set  forth, 
refused  recognition  in  Colorado ;  but  the  right  to  be  protected 
against  trespass  as  an  incident  to  the  ownership  of  land,  while  at 
first  cast  off  with  the  riparian  right,  is  now  restored  to  the  land- 
owner. It  would  be  a  taking  of  land  without  due  process  of  law 
to  permit  others  to  seize  rights  of  way  over  it;  the  California 
doctrine  merely  carries  this  also  to  seizing  the  use  of  water  that 
is  incident  to  the  land. 

Indeed,  it  is  the  fact  of  access  to  the  stream  without  trespass, 
which  forms  the  basis  of  the  law  of  riparian  rights  both  at  civil 
law  and  common  law,  for  only  riparian  owners  have  natural  access 
to  the  stream  as  a  fact.20  So  long  as  the  bordering  lands  are  public 
and  unreserved,  there  is  free  access  to  the  stream;  but  when  the 
lands  become  settled  up,  and  nonriparian  owners  have  no  access  to 
the  stream,  the  Colorado  doctrine  must  provide  some  elaborate 
system  for  condemnation  of  rights  of  way.  As  settlement  ad- 
vances, nonriparian  owners  will  be  forced  to  resort  to  condemnation 
against  riparian  owners  just  as  where  the  law  of  riparian  rights 
prevails,  excepting  only  that  damages  need  not  be  paid  for  the 
water  but  only  for  the  right  of  way.  It  resolves  itself  into  the 
ultimate  fact  that,  after  all,  riparian  owners  have  certain  natural 
rights,  owing  to  their  position  with  relation  to  the  stream  as  a 
natural  resource,  that  are  rooted  in  nature  and  are  of  too  deep  an 
import  to  be  wholly  disregarded  under  any  system  of  law.  Say 
what  one  will  about  modifying  the  water  law  to  meet  necessities, 
in  the  end  we  find  that  it  is  the  fact  of  nature  which  governs,  and 
will  not  modify  by  court  decree. 

When  the  riparian  lands  are  well  settled,  the  lack  of  access  to 
the  stream  (except  by  condemning  under  the  riparian  owner)  will 
exclude  nonriparian  owners  from  the  stream  under  the  law  of  ap- 
propriation as  well  as  under  the  law  of  riparian  rights;  the  differ- 

19  Infra,  c.  26.  20  Supra,   sec.   54;    infra,   sec.   692 

et  seq. 


254  (3d  ed.)     Ft.  II.     CALIFORNIA  -  COLORADO  DOCTRINES.  §  226 

ence  being  that  the  common  law  seeks  to  preserve  equality  among 
all  who  have  natural  access  (the  riparian  owners)  while  the  law 
of  appropriation,  because  of  its  origin  in  an  unsettled  region,  holds 
to  the  principle  of  exclusive  right  by  priority,  or  "first  come  first 
served."21  As  settlement  advances,  the  law  of  appropriation  must 
necessarily  retreat  with  the  public  lands;  and  as  public  lands  bor- 
dering on  streams  are  withdrawn  by  settlement,  or  by  Federal  with- 
drawal from  entry,  the  law  of  appropriation  will  feel  the  effect  of 
the  determinative  force  of  the  right  of  access  upon  any  system  of 
water  law. 

(3d  ed.) 

§  226.  Exception  in  Favor  of  Government  Ditches. — As  ap- 
plicable throughout  the  West  it  may  be  noted  that  an  act  of  Con- 
gress22 has  the  effect  of  reserving  a  perpetual  easement  and  right 
of  way  to  the  government  for  ditches  and  canals  that  might  there- 
after be  constructed  by  authority  of  the  government  over  lands 
which  have  been  entered  and  patented  subsequent  to  the  passage 
of  the  act  or  that  shall  be  patented  hereafter.  In  other  words,  all 
private  lands,  hereafter  patented,  or  patented  since  1890,  have 
been  held  to  be  subject  to  government  ditch  building.23 

A  California  statute  is  to  the  same  effect  regarding  ditch  build- 
ing by  the  United  States  upon  State  lands  hereafter  patented.24 

21  For   settled   regions   the   law   of  States,   or  on   entries   or   claims   vali- 
prior  appropriation  resolves  itself  into  dated   by    this   act,   west    of   the   one 
a  system  of  priority  between  riparian  hundredth    meridian,    it    shall   be    ex- 
owners,  where  the  common  law  seeks  pressed  that  there  is  reserved  from  the 
equality    between    them.     See    supra,  land  in  said  patent  described  a  right 
Bee.   51   et  seq.,   "the  law  confined  to  of  way  thereon  for  ditches  or  canals 
natural  resources."  constructed   by   the    authority   of   the 

22  August  30,  1890,  26  Stat.  391;  6  United  States." 

Fed.    Stats.   Ann.    508;    U.    S.   Comp.  The  land  office  has  ruled  that  this 

Stats.   1901,  p.  1570.  applies   also    to   allowing   the   United 

23  Green  v.  Wilhite,  160  Fed.  755;  States   to    build   a    reclamation    ditch 
Same  v.  Same,  14  Idaho,  238,  93  Pac.  over  a  railroad  located  since  1890.     36 
971.     The  act,  a  proviso  found  in  the  Land  Dec.  482.     But  the  Idaho  court 
sundry    Civil    Appropriation    Act    of  held  that  the  land  office  was  in  error. 
Congress  of  August  30,  1890  (26  Stat.  Minidoka      etc.      Co.      v.      Weymouth 
391,  c.   837;    6  Fed.   Stats.   Ann.   508  (Idaho),  113  Pac.  455. 

(U.   S.   Comp.   Stats.   1901,  p.   1570),  24  Cal.    Stats.    1907,    p.    848.     See 

reads  as  follows:  "That  in  all  patents  Cal.    Stats.    1911,    c.    426,    regarding 

for   lands    hereafter   taken   up    under  rights  of  way  for  municipalities, 
any  of  the  land  laws  of  the  United 


§§227,228  Ch.  10.     WATERS  ON  PRIVATE  LAND.  (3ded.)255 

B.     WATER  ON  PRIVATE  LAND. 
(3d  ed.) 

§  227.  Difference  in  California  and  Colorado  as  to  Water  on 
Private  Land. — While  all  jurisdictions  to-day  join  in  prohibiting 
hostile  entry  upon  private  land  to  appropriate  water,  they  are 
divided  into  two  classes,  already  considered,  with  regard  to  draw- 
ing water  out  of  another's  private  land  by  going  elsewhere  for  the 
purpose.  The  California  doctrine,  recognizing  in  the  private  land- 
owner riparian  rights,  prohibits  diversion  of  water  from  the  private 
land  by  nonriparian  owners  or  for  nonriparian  use,  even  if  entry 
upon  the  stream  is  made  upon  other  land  above  the  complaining 
landowner.  The  law  of  appropriation  is  wholly  confined  in  Cali- 
fornia to  entry  upon  and  waters  flowing  over  public  land.  On  the 
other  hand,  in  Colorado  the  law  of  prior  appropriation  applies  to 
all  waters,  whether  flowing  over  public  or  private  land,  so  long  as 
an  actual  trespass  is  not  made  upon  the  land  itself  of  the  complain- 
ing landowner. 

(3d  ed.) 

§  228.  Water  Flowing  Over  or  by  Private  Land  cannot  be 
Appropriated  in  California. — Congress,  by  the  act  of  1866,  con- 
firmed and  granted  to  the  pioneers  their  rights,  and  held  the  public 
lands  open  to  free  appropriation  of  water,  subject  to  local  rules, 
which  local  rules  in  California  are  enacted,  under  the  act  of  Con- 
gress, for  the  public  domain  in  the  Civil  Code  (sections  1410- 
1422)  ;  but  the  United  States  did  this  only  for  its  own  lands — the 
public  lands.  The  California  law  of  appropriation  of  water  is  in 
this  the  same  as  the  mining  law  in  nature  and  history,  and  the 
system  does  not  sanction  free  appropriation  as  a  perpetual  right 
regarding  waters  on  private  land  any  more  than  the  mining  stat- 
utes confer  any  right  to  minerals  there.  Under  the  California  doc- 
trine, the  private  landowner  has  the  right  of  a  riparian  proprietor 
to  have  the  stream  (so  far  as  it  is  or  may  be  beneficial  to  his  land) 
remain  flowing  by  his  land,  whether  using  it  or  not,  against  all  the 
world  excepting  only  other  riparian  owners  also  owning  land  along 
the  same  stream  and  taking  water  for  the  use  thereof  (and  except- 
ing also  diversions  made  while  his  land  was  public,  and  before  title 
passed  into  private  hands).  It  is  the  essence  of  the  California 
doctrine  that,  as  a  general  principle,  no  appropriation,  properly 
speaking,  can  be  made  of  water  flowing  over  or  by  private  land. 


256   (3ded.)     Pt.  II.     CALIFOENIA  -  COLORADO   DOCTRINES.  §229 

even  though  diverted  upon  an  upper  part  of  the  stream  without 
actual  entry  upon  the  complaining  party's  private  land  itself.25 

(3d  ed.) 

§  229.  Authorities  Quoted. — In  the  first  case  upholding  ap- 
propriation 1  it  was  said:  "It  must  be  premised  that  it  is  admitted 
on  all  sides  that  the  mining  claims  in  controversy,  and  the  lands 
through  which  the  stream  runs  and  through  which  the  canal  passes, 
are  a  part  of  the  public  domain,  to  which  there  is  no  claim  of 
private  proprietorship";  and  in  another  very  early  case:  "It  re- 
sults from  the  consideration  we  have  given  the  case  that  the  right 
to  mine  for  the  precious  metals  can  only  be  exercised  upon  public 
land;  that  although  it  carries  with  it  the  incidents  to  the  right, 
such  as  the  use  of  wood  and  water,  those  incidents  must  also  be  of 
the  public  domain  in  like  manner  as  the  lands. ' '  2  And  so  in  subse- 
quent cases.  In  Lux  v.  Haggin:3  "Recognizing  the  United  States 
as  the  owner  of  the  lands  and  waters,  and  as  therefore  authorized 
to  permit  the  occupation  or  diversion  of  the  waters  as  distinct  from 
the  lands,  the  State  courts  have  treated  the  prior  appropriator  of 
water  on  the  public  lands  of  the  United  States  as  having  a  better 
right  than  a  subsequent  appropriator,  on  the  theory  that  the  ap- 
propriation was  allowed  or  licensed  by  the  United  States.  And 
since  the  act  of  Congress  granting  or  recognizing  a  property  in  the 
waters  actually  diverted  and  usefully  applied  on  the  public  lands 
of  the  United  States,  such  rights  have  always  been  claimed  to  be 
deraigned  by  private  persons  under  the  act  of  Congress  from  the 
recognition  accorded  by  the  act,  or  from  the  acquiescence  of  the 
general  government  in  previous  appropriations  made  with  its  pre- 
sumed sanction  and  approval."  In  Lux  v.  Haggin  even  the  dis- 
senting opinion  of  Judge  Ross  concedes,  ' '  The  doctrine  is  expressly 
limited  to  the  waters  upon  what  are  known  as  the  public  lands." 
In  another  case:  "It  does  not  appear  whether  the  lands  through 

25  See  supra,  sec.  117,  list  of  cases  to  what  the  riparian  right  consists  of, 

following     the     California     doctrine;  may  not  be  somewhat  narrowed  (infra, 

infra,    sec.    259,    prior    settlers;    and  c.  35).     But  that  has  no  bearing  here, 

infra,  sec.   515   et  seq.,  protection   of  while   considering   the   distinction   be- 

the  riparian  right  against  nonriparian  tween  public  and  private  land  law. 

owners.  !  Irwin  v.   Phillips,   5   Gal.   140,   63 

We  state  this  here  in  this  general  Am.  Dec.  113,  15  Morr.  Min.  Rep.  178. 

way,  as  a  question  between  public  and  2  Tartar  v.   Spring  Creek  etc.   Co., 

private  land,  the  former  raising  ques-  5   Cal.   396,  14  Morr.  Min.  Rep.   371, 

tions  outside  the  common  law.     When  quoted  and  approved  by  Field,  C.  J., 

examined    within    the    common    law,  in  Biddle  Boggs  v.  Merced  Min.  Co., 

irrespective    of    public    land    law,    we  14  Cal.  377,  10  Morr.  Min.  Rep.  334. 

would  not  say  that  this  statement,  as  3  69  Cal.  255,  10  Pac.  674. 


§  229  Ch.  10.     WATERS  ON  PRIVATE  LAND.  (3d  ed.)   257 

which  the  -stream  ran  at  the  time  defendant  claims  to  have  acquired 
his  right  of  appropriation  were  private  or  public  property.  If 
they  were  public  lands  of  the  United  States  at  that  time,  we  think 
it  devolved  upon  the  defendant  to  show  that  fact."*  In  Cave  v. 
Tyler  5  it  was  said :  ' '  In  all  the  cases  to  which  we  have  referred, 
the  diversion  was  upon  the  public  domain,"  and  held  that  the  law 
requires  it  'to  be  so.6 

The  same  is  laid  down  in  the  other  courts  following  the  historical 
theory.  The  United  States  circuit  court  of  appeals  says  in  a  case 
arising  in  Montana:  "The  law  is  well  settled  that  the  doctrine 
of  appropriation  under  said  statute  [Desert  Land  Act  of  1877], 
which'  is  recognized  and  protected  by  section  2339  of  the  Kevised 
Statutes,  applies  only  to  public  lands  and  waters  of  the  United 
States."7  And  in  Nebraska:  "In  this  way  the  rule  of  appropria- 
tion became  established  in  the  Pacific  States,  in  opposition  to  the 
common  law,  with  reference  to  streams  or  bodies  of  water  which 
wholly  ran  through  or  were  situated  upon  the  public  lands  of  the 
United  States.''18  "These  rules,  however,  were  confined  to  the 
public  lands,  and  are  so  confined  at  the  present  time  in  California, 
Oregon  and  Washington."9  And  in  Washington:  "'Moreover,  the 
doctrine  of  appropriation  applies  only  to  public  lands,  and  when 
such  lands  cease  to  be  public  and  become  private  property,  it  is  no 
longer  .applicable."10  Likewise  in  another  State:  "In  other  words, 

4  City  of  Santa  Cruz  v.  Enright,  95      appropriate    water    under    the    provi- 
Cal.  105,  30  Pac.  197.  sions   of   the   Civil   Code   is   not   con- 

"The  rancho  Temescal  was  never  fined  to  streams  running  over  public 
public  land  within  the  meaning  of  the  lands  of  the  United  States,"  the  court 
United  States  statutes  affecting  ap-  using  the  expression  "common-law  ap- 
propriations of  water.  The  riparian  propriation."  This  case  is  considered 
rights  of  the  owners  of  private  land  in  a  subsequent  section,  infra,  sec. 
are  fully  protected  by  section  1422  of  246. 

the   Civil    Code.     Offe    who   bases   his  7  Winters    v.    United    States,    143 

right  solely  upon  appropriation  made  Fed.  740,  74  C.  C.  A.  666.     See,  also, 

of  waters  flowing  over  land  which  at  S.  C.,  28  Sup.  Ct.  Rep.  207,  28  Sup. 

the  time  of  the  appropriation  was  part  Ct.  Rep.  208,  52  L.  Ed.  340. 

of  the  public   domain  acquires  there-  8  Crawford  v.   Hathaway,   67   Neb. 

by  no  right  superior  to  or  in  deroga-  325,  108  Am.  St.  Rep.  647,  93  N.  W. 

tion  of  those  attaching  to  lands  ripa-  781,  60  L.  R.  A.  889. 

rian  to  the  same  stream  which  at  the  9  Meng  v.  Coffee,  67  Neb.  500,  108 

time  of   the   appropriation   were  held  Am.  St.  Rep.  697,  93  N.  W.  715,  60 

in    private    ownership."     Hargrave    v.  L.  R.  A.  910. 

Cook,  108  Cal.  72,  41  Pac.   18,  30  L.  10  Benton  v.  Johncox,  17  Wash.  277, 

E.  A.  390,  per  Mr.  Justice  Henshaw.  61  Am.  St.  Rep.  912,  49  Pac.  498,  39 

5  133  Cal.  566,  65  Pac.  1089.  L.  R.   A.   107.     See,   also,   Sanders  v. 

6  Compare    Duckworth    v.    Watson-  Wilson,  34  Wash.   659,   76  Pac.  281; 
ville   etc.   Co.,   150   Cal.   520,   89   Pac.  Mason    v.    Yearwood    (Wash.,    1910), 
338,  saying  (dictum):  "The  right  to  108  Pae.  608. 

Water  Rights — 17 


258  (3ded.)     Ft.  II.     CALIFORNIA  -  COLORADO  DOCTRINES.  §230 

it  is  held  under  that  doctrine  that  the  rules  of  prior  appropria- 
tion, founded  upon  local  customs  and  laws,  and  ratified  by  con- 
gressional legislation,  are  confined  in  their  operation  to  the  public 
domain  of  the  United  States."11 

(3d  ed.) 

§  230.  Water  Partly  on  Public  and  Partly  on  Private  Land  in 
California. — Where  the  course  of  a  stream  is  partly  on  public  and 
partly  on  private  land,  there  would  seem  an  argument  on  prin- 
ciple that  some  residuum  of  right  therein  remains  in  the  United 
States  by  virtue  of  such  dual  position  of  the  stream,  which  could 
be  reached  by  appropriation.  Assuming  that  there  was  such  a 
residuum,  we  made  some  extended  argument  on  this  ground  in 
the  previous  editions  of  this  book,  and  perhaps  the  law  might  have 
taken  that  course.  But  it  seems  settled  now  in  California  by  au- 
thority that  no  such  residuum  exists  so  far  as  concerns  nonripa- 
rian  appropriation  against  the  riparian  rights  of  the  private  land- 
owner ; 12  that  a  single  private  riparian  land-holding  upon  a  stream 
withdraws  it  (so  far  as  it  is,  or  may  be  in  the  future,  beneficial 
to  that  land),  completely  from  obtaining  a  permanent  exclusive 

11  Willey  v.  Decker,   11  Wyo.  496,  affected  by  the  incorporation  of  plain- 

100  Am.  St.  Rep.  939,  73  Pac.  210.  tiff   company   and   by   the   legislation 

The  Code  Napoleon  likewise  excepts  passed   for   the   encouragement   of  ir- 

streams  on  the  public  domain.     "The  rigation.     Mud     Creek     Irr.    'Agr.     & 

waters  mentioned  in  articles  644  and  Mfg.  Co.  v.  Vivian,  74  Tex.  170,  11  S. 

645  [of  the  Code  Napoleon  affirmative  W.  1078. 

of  riparian  rights]   are,  to  the  exclu-  See  likewise  Prentice  v.  McKay,  38 

sion  of  all  others,  the  natural  streams  Mont.  114,  98  Pac.  1081;  Lytle  Creek 

that  do  not  form  dependencies  of  the  Co.    v.   Perdew    (Cal.),    2   Pac.    732; 

public  domain."     Droit  Civile  Fran-  Lindley  on  Mines,  2d  ed.,  p.  1526,  sec. 

cais,  by  Aubrey  &  Rau,  4th  ed.,  vol.  841.     See,    also,    cases    cited,    supra, 

III,  p.  46.  sees.  117,  156. 

"But  if  the  water  was  not  so  ap-  The  recent   Oregon  modification  of 

propriated    when    it    flowed   over    the  this  rule  (which  heretofore  applied  as 

public  domain,  it  was  not  subject  to  much  in  Oregon  as  in  other  jurisdic- 

appropriation    after     the    land     over  tions   following   the    California    doc- 

which  it  flowed  became  private  prop-  trine)   is  elsewhere  set  forth.     Supra, 

erty."     Cruse  v.  McCauley  (Mont.),  96  sec.  129. 

Fed.  374.  12  The  argument,  though  raised  on 

In  Texas,  the  act  of  March  10,  1875,  the  briefs  in  Lux  v.  Haggin,  received 

providing    that    any    canal    company  no  attention  from  the  court;  and  in  a 

•'shall  have  the  free  use  of  the  waters  later    case    where    it    was    raised    the 

and  streams  of  the  State,"   does  not  court   said:    "We   see   nothing   in   the 

apply  to  'waters  running  through  pri-  suggestion     that     defendant     is     pre- 

vate  lands,  so  as  to  affect  the  vested  sumably    the   licensee    of    the    United 

rights  of  riparian  owners,  and  hence,  States,   and    that    the   United    States, 

if  defendants,  as  the  owners  of  land  being    an    upper    riparian    proprietor, 

along  a  stream,  have  the  right  to  use  could   take   a   reasonable   quantity   of 

the   water  for  purposes  of  irrigating  water   as   against   the   lower   riparian 

their  lands,   that   right  remained   un-  ownef.     A    riparian    owner    may    not 


§  231  Ch.  10.     WATERS  ON  PRIVATE  LAND.  (3d  ed.)  259 

nonriparian  right  by  appropriation  until  that  riparian  right  is 
nullified  by  grant,  condemnation  or  prescription.13 

(3d  ed.) 

§  231.  The  Law  of  Appropriation  of  Diminishing  Importance 
in  California. — In  the  light  of  this  history,  the  status  of  the  Cali- 
fornia Civil  Code,  sections  1410  to  1422,  as  applicable  only  to 
public  lands,  and  waters  thereon,  is  clear.  They  declare  in  gen- 
eral terms  that  the  right  to  a  stream  can  be  acquired  by  prior 
appropriation  on  posting  a  notice  and  actual  diversion ;  but  sec- 
tion 1422,  upon  the  original  enactment  of  these  sections,  provided 
that  the  rights  of  riparian  proprietors  should  not  be  affected,  which, 
together  with  the  history,  shows  these  code  sections  to  have  been 
passed  as  public  land  law.  It  is  like  the  mining  statute  just  passed 
in  California,14  which  declares  that  any  person  may  locate  a  min- 
ing claim  by  posting  and  recording  a  notice,  these  mining  sections 
wholly  failing  to  use  the  words  "public  lands";  yet  everyone 
knows  them  to  be  confined  thereto.  Moreover,  the  water  sections 
provide  for  posting  of  notices,  building  of  ditches,  and  changes 
of  mode  of  use^  changes  of  ditches,  changes  of  point  of  diversion, 
none  of  which,  it  is  most  emphatically  held  in  California,  can  be 
done  after  the  land  has  passed  into  private  hands.15  The  intrinsic 
evidence  of  the  sections,  together  with  their  history,  shows  them  to 
be  purely  public  land  law. 

The  result  seems  to  be  that,  since  the  public  domain  has  been 
passing  in  California,  and  the  agricultural  lands  are  now  mostly 
in  private  hands,  the  logical  end  is  approaching,  and  the  system 
of  prior  appropriation  is  becoming  little  applicable  to  the  streams 
of  the  State.  The  common  law  of  riparian  rights  is  becoming  the 
general  law.  Nothing  could  be  more  emphatic  than  the  opinion 
of  Mr.  Justice  Sloss  in  a  late  California  decision  denying  any  right 
in  a  nonriparian  owner  to  divert  water  flowing  through  private 
land  which  is  or  may  be  beneficial  to  the  land,  against  the  owner 
of  that  land;16  so  that  the  California  Civil  Code  sections17  upon 
the  system  of  appropriation  are  approaching  a  condition  where 

authorize,    as    against    a    lower    pro-  14  Cal.  Civ.  Code,  se<?.  1426  et  seq. 

prietor,  a  company  to  take  water  from  15  Supra,  sec.  221,  and  infra,  sees. 

the  stream,  to  be  conducted  at  a  dis-  261,  498,  502,  505. 

tance  and  sold."     Heilbron  v.  Canal  16  Miller   v.   Madera   etc.    Co.,    155 

Co.,   75  Cal.  426,  at   432,   7   Am.   St.  Cal.  59,  99  Pac.  502,  22  L.  R.  A.  N. 

Rep.  183,  17  Pac.  535.  8.,  391. 

13  Infra,  see.  815  et  seq.;  especially  «  1410-1422. 
sec.  817. 


260   (3ded.)     Pt.  II.    CALIFORNIA-COLORADO  DOCTRINES.     §§232,233 

they  will  be  functus  officio.  As  the  public  domain  is  passing,  they, 
enacted  under  the  act  of  .Congress  to  govern  rights  in  the  public 
domain,  are  passing  with  it,  especially  as  the  United  States  is  sub- 
stituting new  rules  for  the  public  lands  under  the  policy  of  con- 
servation. The  chief  remaining  applicability  of  the  code  sections 
is  to  diversions  now  in  use,  acquired  in  the  public  domain  days, 
and,  to  some  extent,  to  Sierra  streams  which  in  considerable  part 
still  flow  over  public  land  (the  forest  reserves).18 

(3d  ed.) 

§  232.  Water  on  Private  Land  in  Colorado. — As  already  set 
forth,19  rights  in  water  as  incident  to  private  land  title  (riparian 
rights  as  distinguished  from  rights  of  way  or  ditch  building)  are 
not  at  all  recognized  in  the  States  following  the  Colorado  doctrine; 
a  principle  starting,  like  that  just  discussed,  with  Yunker  v.  Nichols. 
In  this  respect  not  only  was  the  early  ease  not  departed  from,  but, 
on  the  contrary,  it  was  so  strongly  intensified  that  the  law  of  ap- 
propriation is  now  the  sole  law  upon  the  subject  of  waters  in  Colo- 
rado. So  long  as  the  appropriator  does  not  trespass  upon  the  pri- 
vate land  itself, — that  is,  so  long  as  he  goes  upon  a  point  on  the 
stream  above  the  private  boundary, — the  entire  stream  may  be 
diverted  from  the  private  riparian  landowner  if  he  has  not,  at  the 
time,  himself  put  it  to  use;  and  this  though  the  stream  be  the 
sole  element  of  value  of  the  land  (or  rather,  would  have  been  the 
sole  element  of  value  in  jurisdictions  recognizing  riparian  rights).20 
As  said  in  a  late  Idaho  case:  "It  matters  not  through  or  over 
whose  land  they  flow."21 

(3d  ©d.) 

§  233.  Conclusions. — The  following  conclusions  seem  clearly 
correct  as  a  general  statement: 

(a)  An  appropriation  of  water  may  be  made  in  all  jurisdic- 
tions (so  far  as  local  law  governs)  of  waters  flowing  wholly  over 
public  land. 

(b)  '  In  no  jurisdiction  can  rights  of  way  be  appropriated  over 
private  land  against  the  landowner's  protest  (except  by  grant,  con- 
demnation or  prescription). 

18  See  supra,  sec.  197.  21  Idaho     etc.     Co.   v.     Stephenson 

19  Supra,  sees.  118,  167  et  seq.  (1909),  16  Idaho,  418,  101  Pac.  821. 

20  Sternberger   v.    Seaton   etc.   Co.,  An  exception  elsewhere  considered  has 
45  Colo.  401,  102  Pac.  168,  citing  this  recently  been  made  in  Idaho    (supra, 
book.  sec.  185). 


S  233  Ch.  10.     WATERS  ON  PRIVATE  LAND.  (3d  ed.)  261 

(c)  Under  the  Colorado  doctrine  an  appropriation  can  be  made 
of  water  flowing  over  private  land,  if  not  requiring  entry  upon 
that  land  itself;  but  not  under  the  California  doctrine.  In  Cali- 
fornia private  land  is  protected  against  appropriation  of  water 
as  much  as  against  appropriation  of  rights  of  way,  whereas  in 
Colorado  the  protection  is  only  against  appropriation  of  rights  of 
way. 

§§  234-242.     (Blank  numbers.) 


262  (3d  ed.)  Pt.  II.  CALIFORNIA -COLORADO  DOCTRINES.  §§  243,  244 


CHAPTER  11. 
APPROPRIATIONS  ON  PRIVATE  LAND  (CONTINUED). 

§  243.     Introductory. 

§  244.     By  the  landowner  himself  on  his  own  land. 

§  245.     By  grant,  condemnation,  or  prescription. 

§  246.     By    disseisin — Wrongful    appropriations — Duckworth    v.    Watson- 

ville  Co. 
§  247.     Same. 
§  248.     Conclusions. 
§§  249-255.     (Blank  numbers.) 

(3d  ed.) 

§  243.     There  are  some  matters,  not  properly  part  of  the  law 

of  appropriation,  which  may  nevertheless  be  mentioned  because 
of  the  confusion  in  the  previous  editions  of  this  book-  from  having 
failed  to  distinguish  them.  That  is,  the  prohibited  acts  upon  pri- 
vate land  considered  in  the  preceding  chapter  may  be  done  on 
his  own  land  by  the  landowner  himself,  or  by  his  privies  through 
grant,  condemnation  or  prescription;  likewise  there  is  the  rule  of 
procedure  that  the  landowner  must  be  a  party  to  the  controversy 
before  his  rights  can  be  adjudged. 

(3d  ed.) 

§  244.  By  the  Landowner  Himself  on  His  Own  Land. — Where 
a  landowner  diverts  water  upon  his  own  land,  it  is  obvious  that 
the  fact  that  the  point  of  diversion  then  lies  upon  private  land 
(his  own)  is  nothing  against  him.  In  California,  if  the  water 
comes  from  or  flows  to  public  land,  it  is  to  that  extent  a  good  public 
land  appropriation  (in  Colorado  it  matters  not  whence  or  whereto 
the  water  flows  so  long  as  it  be  unused)  ;  referring,  in  California, 
to  the  case  of  a  pioneer  settler  on  a  stream  obtaining,  while  the 
remaining  riparian  land  is  public,  rights  against  subsequent  ripa- 
rian settlers  greater  than  the  common  law  alone  would  give  him 
after  the  settlements  of  others  have  been  made.1 

One  on  his  own  land  may  appropriate  and  get  an  exclusive 
right  to  the  whole  stream  where  the  rest  of  the  land  is  public.  The 
appropriation  in  one  case  was  made  on  the  land  of  a  party,  and 

1  Infra,  sees.  322,  323,  appropriations  by  riparian  owners. 


§244  Ch.  11.     WATERS  ON  PRIVATE  LAND.  (3ded.)263 

not  on  public  land.  The  court  said:  "For,  so  far  as  appears,  they 
were  at  thrt  time  the  sole  occupants  of  the  lands  bordering  the 
stream  ;  and  the  lands  through"  which  it  flowed  after  leaving  the 
lands  of  Kewen  belonged  to  the  United  States.  Such  being  the 
case,  they  had  a  right  to  appropriate  the  entire  stream  for  any 
beneficial  purpose."2  In  Washington3  it  is  said:  "The  fact  ap- 
pearing that  respondent  first  diverted  water  from  the  stream  where 
it  ran  through  his  own  premises  does  not  militate  against  his  ap- 
propriation." In  Montana:4  "Now,  being  the  owner  of  riparian 
land,  he  can,  as  has  been  shown,  legally  exercise  this  privilege  on 
his  own  land;  and,  when  he  has  perfected  such  inchoate  right  by 
fulfilling  the  requirements  of  the  statute,  the  legal  title  to  such 
water-right*  becomes  vested  in  him,  ....  by  reason  of  statutory 
grant,  "y  In  Oregon  :  5  "The  right  of  prior  appropriation  is  limited 
to  the  use  of  water  by  the  pioneer  settler  before  any  adverse  claims 
or  riparian  proprietors  attach  to  the  stream  from  which  the  water 
is  taken,  and  not  to  the  point  of  diversion,  which  may  be  either 
within  or  beyond  the  boundaries  of  the  tracts  selected  by  such 
settler."  Adding  that  to  make  him  go  above  his  boundary  to 
divert  might  be  so  expensive  as  to  be  prohibitive  and  so  retard 
settlement.  In  a  more  recent  case  the  same  court  says  :  '  '  An  ap- 
propriation of  water  is  a  grant  by  the  general  government  to  the 
settler  of  the  right  to  its  use  from  a  non-navigable  stream,  to  the 
injury  of  all  public  land  above  [and,  it  may  be  added,  below]  .the 
point  of  diversion,  which  may  be  within  or  beyond  the  boundaries 
of  the  settler's  claim."6 

Likewise  as  to  the  water  on  his  land,  as  well  as  a  ditch  on  it. 
The  fact  that  the  water  is  flowing  over  private  land  (his  own  land) 
cannot  militate  against  him  where  that  is  the  only  ground  for  dis- 
puting his  diversion.  Private  land,  it  is  true,  has  riparian  rights 
under  the  California  doctrine,  but  where  those  are  his  own  rights 
alone,  this  does  not  prevent  the  pioneer  settler  from  making  his 
appropriation  of  water  coming  from  or  flowing  to  public  land  like 
anyone  else.  In  Healy  v.  Woodruff,7  an  owner  of  a  water-right 
on  public  land  later  bought  up  part  of  the  lower  riparian  land 

2  Alhambra    etc.    Co.    v.    Mayberry,  5  Brown  v.   Baker,   39    Or.   66,   65 

88  Gal.  74,  25  Pac.  1101.  Pac.  799,  66  Pac.  193. 


'  6  Morgan  v'  ^aw,  47  Or.  333,  83 

.r.  o.-  p        (-04 

4  Smith    v.    Denniff,    24    Mont.  20, 

81  Am.   St.   Rep.  408,    60   Pac.  398,          1  97  CaL  464,  32  Pac.  529. 
50  L.  B.  A,  741. 


264  (3ded.)     Pt.  II.     CALIFORNIA  -  COLORADO  DOCTRINES.  §245 

through  which  the  stream  flowed.  Thereafter  he  sought  more 
water  as  an  appropriator  by  enlarging,  on  public  land,  the  ditch 
through  which  the  original  appropriation  had  been  made.  Com- 
plaint was  made  by  subsequent  claimants.  The  court  says:  "The 
fact  that  plaintiff  or  his  grantor  was  a  riparian  owner  does  not 
warrant  the  conclusion  that  he  could  not  be  an  appropriator — 
there  is,  as  is  said  in  a  play,  'no  consonancy  in  the  sequel.'  The 
notion  seems  to  be,  that  becoming  a  riparian  owner  estops  one,  in 
some  sort  of  a  way,  from  being  an  appropriator  of  water,  although 
there  be  no  one  in  existence  in  whose  favor  the  estoppel  can  be 

evoked Counsel  for  respondents  seems  to  think  that  because 

plaintiff's  grantor  as  a  riparian  owner  could  have  prevented  sub- 
sequent appropriators  from  diverting  the  water  above  his  land 
and  away  from  it,  therefore  he  could  not  divert  the  water  himself; 
but  that  is  a  confusion  of  the  distinction  between  meum  ana  tuum. 
Counsel  complain  that  this  view  gives  great  advantage  to  the  first 
possessor  and  appropriator  of  the  water  of  a  stream.  This  is  no 
doubt  true,  but  it  is  the  advantage  which  the  law  gives,  and  which 
necessarily  follows  prior  occupancy  and  appropriation."  It  will 
be  noticed  fhat  the  additional  diversion  was  made  on  public  land; 
the  court,  however,  considers  riparian  ownership  of  no  importance 
against  the  riparian  owner  himself. 

Other  authorities  bearing  hereon  are  cited  elsewhere  herein  to 
the.  effect  that  an  exclusive  right  by  appropriation  may  be  obtained 
by  a  riparian  owner  (the  first  settler  on  a  stream  the  rest  of  which 
is  on  public  land)  on  the  same  footing  (and  no  different)  as  one 
not  such.8 

(3d  ed.) 

§  245.    By  Grant,   Condemnation  or  Prescription. — It  is  the 

same  where  the  rights  of  the  landowner  or  landowners  which  would 
be  infringed  have  been  acquired  by  grant,  condemnation  or  prescrip- 
tion, being  matters  considered  in  separate  chapters  elsewhere,  and 
requiring  no  comment  here  other  than  to  mention  them. 

The  aid  of  condemnation  is  being  widely  extended  to  appro- 
priators in  the  West  under  the  decision  of  the  supreme  court  of 
the  United  States  in  Clark  v.  Nash,9  as  discussed  in  the  chapter 
upon  eminent  domain.10 

8  Infra,  sec.  323.  10  Infra,  sec.  607  et  seq. 

9  198  U.  S.  361,  25  Sup.  Ct.  Eep. 
676,  49  L.  Ed.  1085,  4  Ann.  Cas.  1171. 


§246 


Ch.  11.     WATEKS  ON  PRIVATE  LAND. 


(3ded.)  265 


(3d  ed.) 

§  246.  By  Disseisin — Wrongful  Appropriations — Duckworth  v. 
Watsonville  Co. — A  wrongdoer  against  the  private  landowner  has 
no  vested  right  until  prescription  has  arisen,  but  in  the  meantime 
may  hold  possession  against  anyone  but  the  true  owner.11 


11  Infra,  sec.  625  et  seq.  To  dispute 
a  diversion  actually  made  of  water  or 
the  building  of  a  ditch,  one  must  rely 
upon  the  strength  of  his  own  right, 
and  not  upon  the  weakness  of  his 
adversary's.  Sowards  v.  Meagher 
(Utah,  1910),  108  Pac.  1113;  Evans 
Ditch  Co.  v.  Lakeside  Ditch  Co.,  13 
Cal.  App.  119,  108  Pac.  1027,  citing 
section  1963,  subdivision  11,  Code  of 
Civil  Procedure  of  California.  Or, 
in  other  words,  "Between  those  who 
are  equally  in  the  right  or  equally  in 
the  wrong  the  law  does  not  inter- 
pose." Cal.  Civ.  Code,  aec.  3524. 

In  Browning  v.  Lewis,  39  Or.  11, 
64  Pac.  305,  it  is  said:  "It  is  con- 
tended by  defendant's  counsel  that 
the  evidence  shows  that  when  plain- 
tiff diverted  the  water  of  Grave  creek, 
the  rights  of  a  lower  riparian  pro- 
prietor had  attached  thereto,  so  that 
the  stream  was  not  then  flowing 
through  public  land,  and,  this  being 
BO,  the  water  thereof  was  not  subject 
to  appropriation."  But  tire  court 
held  that  defendant  was,  as  to  such 
riparian  owrner,  a  mere  volunteer,  and 
that  this  gave  no  ground  for  contest- 
ing the  prior  possession  of  his  op- 
ponent. Citing  Cardoza  v.  Calkins, 
117  Cal.  106,  48  Pac.  1010,  18  Morr. 
Min.  Rep.  689,  and  Utt  v.  Frey,  106 
Cal.  392,  39  Pac.  807.  Affirmed  in 
MeCall  v.  Porter,  42  Or.  49,  70  Pac. 
823,  71  Pac.  976,  saying:  "Nor  is  it 
material,  so  far  as  the  rights  of  the 
parties  to  this  suit  are  concerned, 
whether  others  have  acquired  rights  to 
the  use  of  the  water  of  the  stream, 
either  by  appropriation  or  as  riparian 
proprietors,  prior  and  superior  to 
those  of  defendant." 

In  Senior  v.  Anderson,  138  Cal.  716, 
72  Pac.  349,  the  appropriation  had 
been  made  on  the  homestead  of  a 
stranger  to  the  suit.  The  court,  while 
finding  it  unnecessary  to  decide  the 
point,  said,  by  way  of  dictum  that 
this  was  a  good  appropriation  against 
all  but  the  landowner,  whose  right  to 
object,  being  that  of  a  stranger  to 
the  suit,  could  not  affect  the  ques- 


tion. The  following  quotation  is  en- 
tirely in  point:  "The  remaining  find- 
ing to  be  considered  is  that  the  point 
of  diversion  of  the  water  by  Senior 
was  on  the  homestead  land  of  Mrs. 
Hines;  from  which  it  is  claimed  by 
the  respondent  that  the  plaintiffs'  ap- 
propriation was  void,  and  we  are  cited 
to  several  eases  as  supporting  this 
contention.  But  these  cases  cited 
differ  materially  from  the  case  at  bar, 
being  all  of  them  cases  between  the 
appropriator  and  the  owner  of  the 
land  on  which  the  entry  was  made, 
and  being  also  cases  of  intentional 
trespass  by  the  former  upon  the  lat- 
ter." 

In  another  case  it  is  held  that 
where  a  right  to  the  use  of  water  is 
asserted  through  a  ditch  which  crosses 
the  lands  of  another,  for  which  no 
perpetual  easement  has  been  acquired, 
none  but  the  owner  of  the  premises 
across  which  the  ditch  is  constructed 
are  in  a  position  to  complain,  and 
where  such  owner  makes  no  issue  and 
offers  no  proof  thereon  this  feature 
will  be  disregarded.  Hough  v.  Porter, 
51  Or.  318,  95  Pac.  732,  98  Pac.  1093, 
102  Pac.  728. 

Further  authorities  to  this  effect 
are  collected  infra,  sec.  626  et  seq. 
(unrepresented  interests).  See,  also, 
San  Jose  L.  &  W.  Co.  v.  San  Jose 
R.  Co.,  129  Cal.  673,  62  Pac.  269; 
Le  Quime  v.  Chambers  (1908),  15 
Idaho,  405,  98  Pac.  415,  21  L.  R.  A., 
N.  S.,  76  (dictum}.  Compare  the 
civil  law  elsewhere  quoted  (infra,  sec. 
690)  comparing  running  water  to 
wild  animals,  and  saying  that  wild 
game  caught  on  another's  land  be- 
longs to  the  hunter,  and  it  matters 
not  that  the  landowner  whenever  he 
sees  fit  may  prohibit  him  from  hunt- 
ing there. 

There  is  a  California  case  in  which 
the  point  was  overlooked.  In  CAVE  v 
TYLER  (133  Cal.  566,  65  Pac.  1089 
(McFarland,  J.),  S.  C.,  in  147  Cal. 
454,  82  Pac.  64,  did  not  deal  with  this 
point)  an  appropriation  was  made  in 
1853  on  private  land  by  a  stranger 


266  (3ded.)     Pt.  II.     CALIFORNIA  -  COLORADO  DOCTRINES. 


5247 


Usually  this  is  regarded  to-day,  in  the  law  of  real  estate,  as  a 
subordinate  matter  of  procedure,  to  the  effect  that  controversies 
must  be  decided  between  the  parties  litigant.12  The  ancient  com- 
mon law  had  erected  an  elaborate  system  of  tenure  by  disseisin 
upon  it,  to  the  effect  that  the  first  wrongdoer  (or  "disseisor"), 
because  of  his  right  to  hold  off  a  second  wrongdoer,  had  a  sort  of 
tenure  by  possession  until  the  true  owner  (or  "disseisee")  under-  • 
took  to  oust  both  of  them  by  a  "writ  of  novel  disseisin."  There 
is  a  recent  revival  of  the  doctrine  as  concerns  water  law  in  the  case 
of  Duckworth  v.  Watsonville  Co.  in  California;  calling  disseisin 
an  "appropriation,"  and  the  wrongdoer  an  "  appropriates  "13 

Some  comments  in  the  following  section  may  serve  to  put  the 
matter  before  the  reader. 


(3d  ed.) 

§  247.  Same. — At  common  law,  prior  possession  gives  a  right 
only  as  to  those  things  which  previously  had  no  owner,  such  as 
wild  animals,  fish,  and  other  things  in  the  ' '  negative  community. ' ' 14 
But  of  things  having  an  owner,  naked  possession  by  another  is  no 
source  of  title  at  common  law,15  and  since  streams  on  private  land 


to  the  owner  thereof,  while  the  stream 
above  flowed  entirely  through  public 
land.  Defendant,  also  a  stranger  to 
the  lower  private  4andowner,  later  ac- 
quired title  to  the  upper  land  from 
the  United  States,  and  interfered  with 
the  water.  Referring  to  the  rule  of 
the  California  law  that  the  doctrine 
of  appropriation  applies  only  to  pub- 
lic land,  it  was  held  that  the  plain- 
tiff had  no  redress  because  his  point 
of  diversion  was  on  private  land. 
But  as  the  landowner  on  whose  land 
the  point  of  diversion  lay  was  not  a 
party  to  the  controversy  in  Cave  v. 
Tyler,  it  may  be  that  it  should  have 
been  enough  (against  the  upper  owner 
alone)  that  the  upper  land  was  public 
at  the  time  of  the  .diversion. 

12  Infra,  see.  625  et  seq. 

13  In  this  case  the  court  says,  upon 
the    basis   of   a    disseisor's    diversion 
(calling   it     "common-law    appropria- 
tion")   on    a    third    person's    private 
land  or  water:   "The  right  to  appro- 
priate water  under  the  provisions  of 
the     Civil     Code    is    not     confined    to 
streams  running  over  public  lands  of 
the    United    States."     Duckworth    v. 
Watsonville  etc.  Co.,  150  Cal.  520,  89 
Pac.  339.     But  upon  the  second  ap- 


peal the  learned  justice  who  had  writ 
ten  this  said  in  a  concurring  opinioi , 
"All  that  was  said  on  this  subject  <.ji 
the  previous  appeal  is  inapplicable  to 
the  present  case,"  and  the  justice  who 
wrote  the  court's  opinion  upon  the 
second  appeal  said  that  it  would  be 
a  "mere  device"  to  entitle  such  tres- 
passes upon  private  rights  as  "appro- 
priations." Duckworth  v.  Watson- 
ville Co.  (1910),  158  Cal.  206,  110 
Pac.  927.  Rehearing  denied  Septem- 
ber 24,  1910. 

Some  other  California  opinions 
have  said,  upon  the  same  basis,  that 
the  law  of  appropriation  applies  to 
percolating  waters,  though  holding 
that  no  exclusive  appropriation  there- 
of can  be  made  against  the  rights 
(though  unused)  of  the  landowner  in 
whose  land  the  percolating  water  ex- 
ists; and  the  California  court  has  ex- 
pressly said  that  such  so-called  tres- 
passer's "appropriations,"  or  appro- 
priations by  disseisin,  are  "radically 
different"  from  vested  rights  in  per- 
colating water.  Infra,  sees.  824, 
1158. 

14  Supra,  c.  3. 

15  See  Holmes  on  the  Common  Law, 
treating  of  "possession." 


§  247  Ch.  11.     WATEES  ON  PRIVATE  LAND.  (3d  ed.)  267 

have  (in  the  sense  of  usufructuary  right)  owners,  viz.,  the  riparian 
community  along  it,  naked  possession  thereof  by  a  nonriparian 
owner  is  no  common-law  source  of  title.  But  there  is  a  difference 
between  "title"  and  "possession.".  Prior  possession  without  title 
has  a  right  of  protection  between  two  trespassers  themselves. 
Neither  Avrongdoer's  position  is  permanent,  being  terminable,  at 
any  time  before  prescription  has  arisen,  by  the  action  of  the  ripar- 
ian landowner;  yet  the  first  trespasser  may  hold  off  the  second  in 
the  meantime,  even  though  both  are  trespassers. 

It  can  hardly  be  that  such  trespassers'  possession  on  private 
water-rights  or  land  of  a  third  person  can  be  called  "appropria- 
tions" in  California  to-day  without  causing  confusion.  It  is  true 
that  some  centuries  ago  there  was  a  tendency  to  build  the  common 
law  of  watercourses  upon  this  idea;  but  it  soon  passed  to  a  very 
subordinate  position'.16  It  is  also  true  that  the  pioneer  California 
water  law  of  the  public  domain  was  rested  upon  it,  but  there  also 
it  has  long  since  passed  away.17  "The  law  of  possessory  rights  on 
public  land  was  never  amalgamated  with  the  law  of  mere  trespassers 
on  private  rights  any  more  than  was  the  law  of  mining.  Just  as 
to  water,  the  first  -trespasser  (or  disseisor)  digging  for  gold  on  a 
private  farm  is  a  prior  "appropriator"  as  to  another  mere  tres- 
passer who  seeks  to  oust  him;  the  first  possession  is  good  enough 
against  the  later.  Yet  in  such  a  case  the  details  of  the  mining  law 
would  not  apply,  nor  require  that  the  first  trespasser  (on,  for  ex- 
ample, a  Santa  Clara  orchard)  has  staked  out  a  claim  of  the 
statutory  length,  had  recorded  a  certificate  of  location,  done  the 
statutory  assessment  work  and  the  like.  There  is  no  difference 
in  saying  that  the  mining  law  applies  to  private  land  in  California, 
and  that  the  law  of  appropriation  of  water  does. 

16  Infra,  sec.  668.  appropriation,  as  a  rule  of  disposal  of 

17  The   assertion   that   the   pioneers  rights  in  the  public  domain,  thus  arose 
were  trespassers  subject  to  the  para-  when  the  region  was  undeveloped,  and  • 
mount  title  of  the  United  States   (or  all  energies  were  turned  to  induce  set- 
of  its  later  patentees  if  the  lands  on  tlement  and  encourage  entries  thereon, 
which  appropriations  were  made  should  It  was  built  up  for  the  encouragement 
later  pass  to  patent)  became  a  source  of  the  pioneers,  who,  though  they  re- 
of  alarm,  which  caused  the  early  Call-  fused   to   admit   it,   were   in   fact   all 
fornia  court  to  declare  an  appropria-  mere    trespassers;    a    system    for    the 
tion  of  water  on  public  land  to  be  a  encouragement  of  trespass.     But  this 
freehold  right  good  against  the  world  encouragement    (and    this    system    of 
by  grant  from  the  United  States,  which  rights  by   "disseisin")    was   never,   in 
the  supreme  court  of  the  United  States  California,   of   importance   on   private 
approved,     and     in     which     Congress  land.    Supra,  cc.  5  and  6. 

joined  by  the  act  of  1866.    The  law  of 


268  (3ded.)     Pt.  II.     CALIFORNIA  -  COLORADO  DOCTRINES.  §247 

To  say,  upon  the  doctrine  of  disseisin,  that  there  is  now  a 'sys- 
tem of  appropriating  streams  wholly  on  private  land  in  California, 
which  upholds  the  common  law  of  riparian  rights  with  respect  to 
such  lands,  is  the  same  as  saying  there  is  such  a  system  in  England. 
The  doctrine  of  disseisin  is  as  operative  in  England  and  the  East 
as  in  California ;  yet  to  say  on  that  account  that  the  law  of  appro- 
priation of  water  is  in  force  in  England  would  not  be  attempted. 
As  is  said  in  a  leading  English  case,  "In  this,  as  in  other. cases  of 
real  property,  possession  is  a  good  title  against  a  wrongdoer," 
but  adding  that  this  is  a  "very  different  question"  from  the  law 
of  prior  appropriation  of  water.18  Such  claims  may,  perhaps,  be 
"honor  among  thieves";  both  rivals  are  stealing  the  true  owner's 
water  or  his  land  for  a  ditch.  The  first  thief  can  keep  off  the 
second  one  until  prescription  has  given  him  a  vested  right  by 
outlawing  his  own  •  theft ;  but  until  then  neither  thief  has  any 
"right"  at  all,  and  it  is  difficult  to  call  the  possession  of  either  a 
"right  by  prior  appropriation."-  They  are  wrongs,  not  rights. 

To  speak  of  disseisors'  possessions  as  "appropriations"  is  to 
speak  about  "rights"  that  are  admittedly  no  rights  at  all.  Only 
one  California  case  undertook  to  actually  apply  the  doctrine  of 
disseisin  of  private  rights  under  the  form  of  calling  it  "appro- 
priation," and  upon  a  second  appeal  itself  spoke  of  it  as  "a  mere 
device,"  wholly  inapplicable  to  the  practical  solution  of  the  prob- 
lem involved,  which  was  decided  in  the  end  upon  rights  by  grant, 
irrespective  of  claims  by  "appropriation."  The  so-called  appro- 
priator  got  nothing  in  the  end.  For  "the  term  'appropriation' 
as  applied  to  the  acquirement  of  the  right  to  the  use  of  water  has 
in  this  State  a  statutory  technical  meaning, ' ' 19  and,  as  declared 
in  Lux  v.  Haggin,  in  the  accepted  sense  of  that  word,  it  does  not 
exist  at  common  law  or  on  private  land.  Only  the  freehold  estate, 
good  against  the  world  because  obtained  on  public  land  under  the 
Federal  Statute  to-day  passed  in  that  behalf  (the  act  of  1866) 
can  be  properly  called  an  "appropriation"  in  California,  without 
confusion.20 

18  Mason  v.  Hill,  5  Barn.  &  Adol.  20  In  22  Harvard  Law  Review,  312, 
1,   110   Eng.   Reprint,   692.  reviewing   the   second   edition  of   this 

19  Alta  etc.  v.  Hancock,  85  Cal.  219,  book,  the  reviewer  comments  on  "the 
at  223,  20  Am.  St.  Rep.  217,  24  Pac.  view  taken  in  a  late  ease  (Duckworth 
645.     Likewise    Merrill    v.    Southside  v.   Watsonville  Co.,   150   Cal.   520,   89 
Co.,  112   Cal.  433,  44  Pac.  720;   Hil-  Pac.  338),  that  'the  right  to  appropri- 
dreth  v.  Montecito  Co.,  139  Cal.  29,  72  ate  water  under  the  provisions  of  the 
Pae.  395.  Civil  Code  is  not  confined  to  streams 


§  248  Ch.  11.     WATERS  ON  PEIVATE  LAND.  (3d  ed.)  269 

The  reader  should  appreciate,  however,  that  it  is  this  principle 
alone  of  "claims  subject  to  a  paramount  title"  (that  is,  wrongful 
appropriations  by  disseisin)  that  is  contemplated  in  the  few  opin- 
ions mentioned  saying  that  the  law  of  prior  appropriation  of  water 
in  California  applies  to  waters  on  private  land,  antf  to  percolating 
waters,  while  holding  most  emphatically  that  this  type  of  "appro- 
priation" is  of  no  avail  against  the  ripaVian  owner  or  overlying 
landowner.  They  are  in  fact  not  " appropriations, V  but  "dis- 
seisins, ' '  which  are  no  rights  at  all  until  prescription  has  arisen. 

• 

(3d  ed.) 

§  248.     Conclusions. — The   general   principles   deducible   from 

the  authorities  upon  appropriations  on,  or  of  waters  on,  private 
lands,  we  have  stated  at  the  end  of  the  preceding  chapter.  We 
here  venture  to  state  the  following  exceptions,  deducible  from  the 
authorities  considered  in  the  present  chapter: 

(a)  A  diversion  made  on,  or  of  waters  flowing  over,  one's  own 
private  land  by  the  landowner  himself  or  his  privies  will  not  be 
open  to  attack  merely  because  of  the  private  character  of  the  land 
of  the  party  making  the  diversion,  or  his  privies. 

(b)  Rights  may  be  obtained  against  the  landowner  by  grant, 
condemnation  or  prescription. 

(c)  Priority  of  possession  will  govern  claims  of  trespassers  on, 
or  as  to  waters  flowing  over,  private  land,  solely  between  them- 
selves, subject  to  the  paramount  right  of  the  private  landowner 
or  true  water-right  owner,  and  terminable  by  him;  but  under  the 
California  doctrine  such  claims  are  not  properly  "appropriations," 
that  term  having  generally  a  sense  of  paramount  right,  denoting 
title  good  against  riparian  owners  and  the  whole  world,  and  obtain- 
able only  on  public  land;  nor,  probably,  are  such  temporary,  ter- 

running  over  public  lands';  the  court  the  class  indicated  to  rights  ripened 
using  the  expression  'common-law  ap-  by  prescriptive  user." 
propriation'  " ;  and  says :  "This  loses  The  Duckworth  opinion  says  you 
sight  of  the  California  theory  of  the  can  rightfully  appropriate,  and  get 
historic  basis  .  (referred  to  in  the  a  "vested"'  right  for  nonriparian  use 
opinion)  of  appropriation  as  an  im-  thereof,  any  water  on  private  land  to 
plied  grant  from  the  United  States  which  vested  rights  have  not  already 
(Act  of  1866,  U.  S.  Rev.  Stats.,  sees.  attached.  What  such  water  can  there 
2339,  2340)  and  from  the  State  by  be  when  the  riparian  owner  is  en- 
the  provisions  of  the  code.  The  view  titled  in  California  to  absolutely  en- 
is  squarely  opposed  to  all  the  Cali-  join  such  use?  Does  not  the  state- 
fornia  authorities  which  have  passed  ment  of  necessity  limit  rights  by  ap- 
upon  this  point.  The  qualifications,  propriation  (as  distinguished  from 
however,  contained  in  the  opinion  wrongs)  to  waters  on  public  land? 
practically  confine  appropriators  of 


270  (3ded.)     Pt.  II.     CALIFORNIA  -  COLOEADO  DOCTRINES.  §248 

minable  claims  governed  by  the  statutes  upon  "appropriation" 
when  those  statutes  differ  from  the  common  law  in  respect  to  dis- 
seisin of  the  true  owner  by  two  adverse  claimants  both  subject 
to  the  paramount  title.  They  are  not  vested  rights. 

(d)  The  rights  of  any  person  infringed  cannot  be  considered 
in  opposition  to  a  claim  when  set  up  by  a  stranger  to  the  party 
infringed.  If  not  set  up 'by  the  injured  party  or  someone  in  privity 
with  him,  the  infringed  right  does  not  militate  against  the  claim; 
and  when  prescription  has  arisen,  a  vested  right  then,  but  not  till 
then,  results  (aright  by  prescription,  not  by  appropriation). 

§§  249-255.     (Blank  numbers.) 


§§256,257       Ch.  12.    APPEOPEIATOES   AND    SETTLERS.     (3d  ed.)  271 


CHAPTER  12. 

RELATION   OF   PUBLIC  LAND   APPROPRIATORS   TO 
RIPARIAN  PROPRIETORS. 

§  256.  Another  phase  of  the  same  question. 

§  257.  Subsequent  settlers. 

§  258.  Subsequent  settlers  under  Federal  Eight  of  Way  Acts. 

§  259.  Prior  settlers. 

§  260.  Prior  settlers  who  hold  the  land  in  fee. 

§  261.  Prior  settlers  before  patent. 

§  262.  Prior  settlers  under  the  Colorado  doctrine. 

§  263.  Prior  settlers  under  Federal  Eight  of  Way  Acts. 

§  264.  Conclusion. 

§§  265-274.     (Blank  numbers.) 

(3d  ed.) 

§  256.  The  foregoing  chapters  and  the  present  one  cover  mat- 
ters which  have  been  usually  discussed  independently,  and  they 
were  so  treated  in  the  preparation  of  this  book.  It  is  only  when 
the  work  is  done  and  they  are  placed  side  by  side  that  they  are 
seen  to  be  identical  questions.  Any  repetition  which  may  seem  to 
result  in  devoting  this  chapter  to  it  after  it  has  been  substantially 
covered  in  what  has  gone  before  must  be  laid  at  other  doors  than 
the  author's.  I  have  but  followed  the  original  sources,  in  which, 
as  the  reader  must  already  have  seen,  there  has  been  all  the  dif- 
ficulty which  results  from  diversities  of  thought  that  were  not 
appreciated ;  and  it  is  only  by  following  the  discussion  through  the 
same  varying  forms  which  it  has  taken  in  the  authorities  them- 
selves that  some  degree  of  completeness  and  clearness  may  be  hoped 
for. 

(3d  ed.) 

§  257.  Subsequent  Settlers. — The  United  States  having 
granted  the  right  to  use  the  water  while  on  public  land  to  appro- 
priators  under  the  act  of  1866  (such  being  the  theory  of  the  Cali- 
fornia doctrine),  later  settlers  take  subject  thereto,  as  in  any  case 
of  successive  grants  from  a  common  grantor  where  the  prior  gran- 
tee is  in  possession.  A  grant  of  land  from  the  United  States  re- 
mains subject  to  prior  appropriations  of  water  or  prior  rights  to 


272  (3ded.)  Pt.  II.  CALIFORNIA  -  COLOEADO  DOCTRINES. 


§257 


ditches.1  In  the  first  case  cited  in  the  note,  the  later  grant  was 
by  patent  to  railway  lands ;  in  the  last,  to  mining  ground.  In 
De  Necochea  v.  Curtis,  it  was  of  a  homestead.  No  matter  what  the 
character  of  the  later  land  grant,  it  is  not  devested  of  prior  rights 
of  appropriation  of  water  or  rights  to  ditches  acquired  while  the 
land  was  public.  This  is  true  under  both  the  California  and  Colo- 
rado doctrines  of  water  law  (except  that  the  latter  does  not  rest 
it  upon  the  act  of  1866,  but  upon  local  law  alone).2 


1  U.  S.  Rev.  Stats.,  2340    (the  act 
of  1866,  as  supplemented  in  1870) ; 
Broder  v.  Natoina  Water  Co.,  101  U. 
S.  274,  25  L.  Ed.  790,  5  Morr.  Min. 
Eep.  33;   S.  C.,  50  Cal.  621,  4  Morr. 
Min.   Rep.   670;     Irwin  v.   Phillips,  5 
Cal.   140,  63  Am.  Dec.  113,  15  Morr. 
Min.  Rep.  178;  Himes  v.  Johnson,  61 
Cal.   259;    South   Yuba   Water   Co.  v. 
Rosa,   80   Cal.   333,   22   Pac.   222;   De 
Necochea   v.   Curtis,   80   Cal.   397,   20 
Pac.   563,    22    Pac.    198;    Burrows   v. 
Burrows,  82   Cal.   564,   23    Pac.    146; 
Ramelli  v.  Irish,  96  Cal.  214,  31  Pac. 
41;    Taylor  v.   Abbott,   103   Cal.   421, 
37  Pac.  408;  Faulkner  v.  Rondoni,  104 
Cal.    140,  '37     Pac.    883;    MeGuire   v. 
Brown,   106   Cal.   660,   39   Pac.    1060, 
30  L.  R.  A.  384;   Jacob  v.  Day,  111 
Cal.  571,  44  Pac.  243;   Senior  v.  An- 
derson,   115    Cal.   496,   47    Pac.    454; 
Williams   v.   Barter,    121   Cal.   47,   53 
Pac.  405;   Land  v.   Johnston   (1909), 
156  Cal.  253,  104  Pac.  449;  Tuolumne 
etc.  Co.  v.  Maier,  134  Cal.  583,  66  Pae. 
863,  21  Morr.  Min.  Rep.  678. 

2  Arizona. — Miller     v.    Douglas,    7 
Ariz.    41,  60    Pac.  722;    Hill  v.  Le- 
normand,  2  Ariz.  354,  16  Pac.  266. 

California. — Patterson  v.  Mills 
(Cal.),  68  Pac.  1034;  Judkins  v.  El- 
liott (Cal.),  12  Pac.  116;  Wutchumna 
Water  Co.  v.  Pogue,  151  Cal.  105,  90 
Pac.  362;  Wolf  skill  v.  Smith,  5  Cal. 
App.  175,  89  Pac.  1001;  Land  v.  John- 
ston (1909),  156  Cal.  253,  104  Pac. 
449,  and  cases  in  preceding  note. 

Colorado. — Tynon  v.  Despain,  22 
Colo.  240,  43  Pac.  1039  (railway 
grant)  ;  Larimer  etc.  Co.  v.  People,  8 
Colo.  614,  9  Pac.  794;  Coffin  v.  Left 
Hand  D.  Co.,  6  Colo.  443. 

Idaho. — Drake  v.  Earhart,  2  Idaho, 
750,  23  Pac.  541;  Le  Quime  v.  Cham- 
bers (1908),  15  Idaho,  405,  98  Pac. 
415,  21  L.  R.  A.,  N.  S./76. 

Montana,. — Cottonwood  D.  Co.  v. 
Thorn  (1909),  39  Mont.  115,  101  Pac. 
•825,  104  Pac.  281. 


Nebraska.  —  Rasmussen  v.  Blnst 
(1909),  85  Neb.  198,  133  Am.  St.  Rep. 
650,  122  N.  W.  862. 

New  Mexico. — Trambley  v.  Luter- 
man,  6  N.  M.  25,  27  Pac.  312. 

Oregon. — Carson  v.  Gentner,  33  Or. 
512,  52  Pac.  506,  43  L.  R.  A.  130; 
Brosnan  v.  Harris,  39  Or.  148,  87 
Am.  St.  Rep.  649,  65  Pac.  867,  54 
L.  R.  A.  628;  Dodge  v.  Marden,  7  Or. 
457,  1  M^orr.  Min.  Rep.  63;  Tolman  v. 
Casey,  15  Or.  83,  13  Pac.  669 ;  Nevada 
etc.  Co.  v.  Bennett,  30  Or.  59,  60  Am. 
St.  Rep.  777,  45  Pac.  472;  Speake  v. 
Hamilton,  21  Or.  3,  26  Pac.  855; 
Kaler  v.  Campbell,  13  Or.  596,  11  Pac. 
301;  Britt  v.  Reed,  42  Or.  76,  70  Pac. 
1029;  Parkersville  etc.  Dist.  v.  Wat- 
tier,  48  Or.  332,  86  Pae.  775;  Davis 
v.  Chamberlain,  51  Or.  304,  98  Pac. 
154;  Hough  v.  Porter,  5!  Or.  318,  95 
Pac.  732,  98  Pac.  1083,  at  1094,  102 
Pac.  728. 

South  Dalcota. — Driskill  v.  Rebbe, 
22  &  D.  242,  117  N.  W.  135. 

Utah. — Lehi  Irr.  Co.  v.  Moyle,  4 
Utah,  327,  9  Pp.c.  867. 

Washington.  —  Thorpe  v.  Tenem 
Ditch  Co.,  1  Wash.  566,  20  Pac.  588; 
Geddis  v.  Parrish,  1  Wash.  587,  21 
Pac.  314;  Isaacs  v.  Barber,  10  Wash. 
124,  45  Am.  St.  Rep.  772,  38  Pac. 
871,  30  L.  R.  A.  665.  A  statute  to 
the  contrary  is  held  unconstitutional, 
as  giving  the  patentee  power  to  de- 
stroy the  right  of  an  appropriator  ac- 
quired on  public  land.  Miller  v. 
Wheeler  (1909),  54  Wash.  429,  103 
Pac.  641,  23  L.  R.  A.,  N.  S.,  1065. 

United  States. — Morris  v.  Bean 
(Mont.),  147  Fed.  425;  Broder  v.  Na- 
toma  Water  Co.,  101  U.  S.  274,  25  L. 
Ed.  790,  5  Morr.  Min.  Rep.  33. 

See  in  general,  also,  the  cases  in 
support  of  the  Colorado  doctrine, 
supra,  sec.  118.  The  two  doctrines 
are  in  entire  accord  in  this. 


§  257  Ch.  12.     APPROPEIATORS  AND  SETTLERS.       (3d  ed.)  273 

In  a  recent  California  case  it  is  said:3  "As  to  plaintiff's  title 
to  the  water,  it  is  indisputable  that  the  Wutchumna  ditch  was 
constructed  over  vacant  government  land  prior  to  the  time  that 
Pogue  acquired  any  of  his  rights  either  as  an  appropriator  or  as 
an  owner  of  riparian  lands,  and,  consequently,  upon  well-settled 
principles,  the  plaintiff's  earlier  rights  of  appropriation  are  su- 
perior to  Pogue 's  later  rights  either  as  an  appropriator  or  as 
riparian  landowner."4- 

This  is  a  point  now  no  longer  questioned,  and  it  is  hard  to-day 
to  appreciate  that  it  furnished  the  early  controversy  in  the  Western 
water  law.  The  Nevada  court  once  held  otherwise,  on  the  ground 
that  appropriators  were  trespassers,5  but  Congress  settled  the  con- 
trary in  the  acts  of  1866  and  1870,6  and  the  supreme  court  of  the 
United  States  held  that  the  appropriation  prevailed  even  before 
that  act.7  The  Nevada  case  was  overruled,8  and  to-day  a  public 
land  diversion  is  in  all  jurisdictions  a  vested  right,  which  is  pro- 
tected whether  the  later  land  patent  was  issued  before  or  after  1866, 
and  whether  it  does  or  does  not  contain  a  clause  reserving  accrued 
water-rights.  Successors  in  interest  of  the  original  appropriator 
are  protected,  notwithstanding  the  patent  did  not  reserve  any  vested 
or  accrued  water-right,9  but  land  patents  now  contain  a  clause  ex- 

3  Wutchumna  Water  Co.  v.  Pogue,  9  Broder  v.  W.  Co.,  101  U  S.  274. 

151  Cal.  105,  90  Pac.  362.  25  L.  Ed.  790,  5  Morr.  Min.  Rep.  33, 

*  Citing  Osgood  v.  Eldorado  Water  in  which  an  1853  appropriation  pre- 

Co.,  56  Cal.  571,  5  Morr.  Min.  Rep.  vailed  over  an  1864  patent.  Accord, 

37;  Senior  v.  Anderson,  115  Cal.  500,  Davis  v.  Chamberlain,  51  Or.  304,  98 

47  Pac.  454;  San  Jose  L.  &  W.  Co.  Pac.  154;  Carson  v.  Gentner,  33  Or. 

v.  San  Jose  Ranch  Co.,  129  Cal.  673,  512,  52  Pac.  506,  43  L.  R.  A.  130; 

62  Pac.  269.  Hough  v.  Porter  (1908),  51  Or.  318, 

5  Supra,  see.  87;  Van  Sickle  v.  95  Pac-  732,  98  Pac.  1094,  102  Pac. 

Haines,  7  Nev.  249,  15  Morr.  Min.  7285  Isaacs  v.  Barber,  10  Wash.  124, 

Rep.  201;  Union  Min.  Co.  v.  Ferris,  45  Am.  St.  Rep.  772,  38  Pac.  871,  30 

2  Saw.  176.  Fed.  Cas.  No.  14,371,  8  L-  R-  A-  6655  Parkersville  Irr.  Dist. 

Morr.  Min.  Rep.  90;  Thorp  v.  Freed,  v-  Wattier,  48  Or.  332,  86  Pac.  775, 

1  Mont.  651,  Wade,  C.  J.;  Ison  v.  at  778;  Coffin  v.  Left  Hand  Ditch  Co., 

Nelson  Min.  Co.,  47  Fed.  199.  6  Col°-  4435  J°nes  v.  Adams,  19  Nev. 

OK   <*  T?.PV   <*tat*    SPM   2<m    2340-        78>  3   Am'   St   ReP-   788>   6   Pac-   4425 
U.  S.  Rev  Stats.,  sees.  2339,  2340,       Twaddle  v    WinterSj   29  Nev.  88,  85 

ira'   sec-   "*•  Pac.  280,  89  Pac.  289;  United  States 
^  Supra,  sec.  98.  v.   Winans,    198   U.    S.    371,   25    Sup. 
8  Barnes  v.  Sabron,  10  Nev.  217,  4  Ct.  Rep.   662,  49  L.   Ed.   1089. 
Morr.   Min.   Rep.    673;    Shoemaker  v.  In  Patterson  v.  Mills   (Cal.   1902), 
Hatch,  13  Nev.  261 ;  Hobart  v.  Wicks,  68  Pac.   1034,   an  1855  appropriation 
15   Nev.   418,   2   Morr.   Min.   Rep.   1;  was  held  to  prevail  over  a  subsequent 
Jones  v.  Adams,  19  Nev.  78,  3  Am.  St.  patentee   (date  of  patent  not  appear- 
Rep.   788,   6  Pae.  442.     Nevada   now  ing).    Lux  v.   Haggin,   while  discus- 
goes   further,   and  supports  the   Colo-  sing  the  Van  Sickle  case,  and  trying 
rado  doctrine  as  in  a  later  section.  to    minimize    Broder    v.    Water    Co., 
Water  Righto — 18 


274  (3ded.)     Pt.  II.     CALIFORNIA  -  COLORADO  DOCTRINES. 


§258 


pressly  reserving  existing  water-rights,  the  origin  of  which  except- 
ing clause  is  shown  in  the  note.10  The  same  thing  applies  to  rights 
of  way. 

So  far  as  the  later  Federal  land  grant  carries  riparian  rights 
at  all,  those  rights  exist  only  in  the  surplus  over  all  prior  appro- 
priations.11 


(3d  ed.) 

§  258.  Subsequent  Settlers  Under  Federal  Right  of  Way 
Acts.— One  who  completes  a  ditch  across  public  lands  for  irriga- 
tion purposes,  and  who  is  in  possession  thereof  at  the  time  another 
makes  his  homestead  entry  on  the  lands,  acquires  a  right  of  way 
across  the  lands,  and  the  homesteader  takes  his  homestead  subject 


was  forced  to  admit  concerning  the 
latter,  "The  construction  given  to 
the  language  of  the  reservation,  of 
course,  implies  that  those  who  appro- 
priated lands  or  waters  on  the  public 
lands,  prior  to  the  acts  of  1864  [Rail- 
way Act]  and  1866,  had  not  been 
treated  by  the  government  in  those 
acts  as  mere  trespassers,  but  as  there 
by  license."  69  Cal.,  at  347,  10  Pac. 
674.  But  cf.  a  remark  in  Duckworth 
v.  Watsonville  etc.  Co.,  150  Cal. 
530,  89  Pac.  338,  that  an  appro- 
priator  must  rely  solely  on  the  act  of 
Congress;  which  would  inferentially 
leave  him  without  protection  against 
land  patents  issued  before  the  act. 
Cf.  Land  v.  Johnston  (1909),  156  Cal. 
253,  104  Pac.  449. 

10  DEPARTMENT    OF   THE    IN- 
TERIOR. 

General  Land  Office, 
Washington,  D.  C.,  March  21,  1872. 
Hon.  A.  A.  Sargent,  M.  C.,  Washing- 
ton, D.  C. 

Sir:  I  have  the  honor  to  acknowl- 
edge the  receipt  to-day,  by  reference 
from  you,  of  a  letter  bearing  date  of 
the  twelfth  instant,  from  George  E. 
Williams,  Esq.,  of  Placerville,  Cali- 
fornia, recommending  an  excepting 
clause  to  be  inserted  in  patents  issued 
for  lands  in  the  mineral  regions,  for 
the  protection  of  rights  for  the  use 
of  water  ditches,  etc.,  in  which  you 
concur. 

In  response,  I  would  state  that 
this  question  came  before  me  for 


consideration  several  weeks  since,  and 
although  from  an  examination  of  the 
ninth  section  of  the  mining  act  of 
July  26th,  1866,  and  the  seventeenth 
section  of  the  amendatory  act  of  July 
9,  1870,  I  am  satisfied  that  rights  to 
the  use  of  water  for  mining,  manu- 
facturing, agricultural  or  other  pur- 
poses, and  rights  for  the  construction 
of  ditches  and  canals,  used  in  con- 
nection with  such  water-rights,  are 
fully  protected  by  law;  yet,  in  order 
that  all  misapprehension  that  might 
exist  between  the  holder  or  claimant 
of  such  right  and  such  patentee  might 
be  set  at  rest,  it  was  determined  in 
all  patents  hereafter  granted  in  min- 
eral regions  of  the  United  States,  to 
insert  an  additional  clause  or  condi- 
tion, expressly  protecting  and  reserv- 
ing such  water-rights,  and  making 
the  patent  subject  thereto,  the  same 
as  before  it  was  granted. 

The  blank  forms  for  this  patent 
are  now  being  printed,  and  will  be 
ready  for  use  in  a  clay  or  two,  pending 
the  receipt  of  which,  the  granting  of 
patents  in  the  mineral  region  for  ag- 
ricultural lands  will  be  temporarily 
suspended. 

I  am,  sir,  very  respectfully, 
Your  obedient  servant, 
WILLIS  DRUMMQND, 

Commissioner. 

Land  patents  have  ever  since  con- 
tainer! an  excepting  clause  protecting 
accrued  water  or  ditch  rights.  See 
Redwater  Co.  v.  Jones  (S.  D.,  1911), 
130  N.  W.  85. 

11  See  following  sections. 


5  259  Ch.  12.     APPROPRIATOBS  AND  SETTLERS.       (3d  ed.)  275 

to  such  right  of  way.12  The  Right  of  Way  Act  of  1891  expressly 
so  declares  for  ditches  built  under  it,  but  the  rule  is  the  same 
even  though  the  ditch  builder  did  not  proceed  under  the  Federal 
Right  of  Way  Act  of  1891,13  or  even  if  he  attempted  to  do  that 
but  was  not  successful  in  acquiring  a  right  under  such  acts.14  For 
the  act  of  1866  15  confirms  Ijis  right  against  subsequent  settlers,15* 
and  the  Right  of  Way  Acts  are  but  supplementary  to  the  act  of 
1866  in  this  and  do  not  in  this  repeal  it.  The  right  of  way  prob- 
ably relates  back  to  the  beginning  of  the  survey  to  determine  its 
priority  against  the  subsequent  settler,  just  as  against  a  rival  right 
of  way  claimant.  These  matters  are  considered  at  some  length  in 
a  later  chapter  devoted  to  the  Federal  Right  of  Way  Acts.10 

But  the  subsequent  settlers  are  subject  only  to  the  easement, 
which  gives  the  right  of  way  owner  no  right  to  build  a  house  along- 
side the  canal.17  Nor  are  they  (probably)  subject  to  the  holders 
of  the  mere  revocable  permits  (not  amounting  to  easements)  for 
rights  of  way  under  the  act  of  1901  and  the  rules  of  the  Forest 
Service.18 

An  easement  for  a  reservoir  granted  under  the  act  of  March  3, 
1891,  and  subsequently  acquired  by  the  United  States  for  use  in 
connection  with  a  project  under  the  Reclamation  Act,  does  not  be- 
come extinguished  by  merger  in  the  estate  of  the  government  in 
the  land,  and  entries  allowed  for  such  lands  within  and  below  the 
flowage  contour  line  of  the  reservoir  are  subject  to  the  right  of 
flowage  by  storage  of  waters  in  the  reservoir.19 

(3d  ed.) 

§  259.  Prior  Settlers.  —  Under  the  California  doctrine,  riparian 
rights  attach  to  the  land  of  prior  settlers,  which  appropriations 

12  Cottonwood     D.     Co.     v.     Thorn  15  Rev.   Stats.,  sees.  2339,  2340. 
(1909),  39  Mont.   115,  101  Pac.  825,     '      i5a  Supra,  sec.   92  et  seq. 

104  Pac.  281.     Accord  as  to  a  water  ia  r  f                .Ort 

ditch,   Broder   v.    W.    Co.,    101   U.   S.  6  lnfra>  sec"  43°  et  ^ 

274,   25   L.    Ed.    790,    15    Morr.   Min.  "  Whitmore  v.  Pleasant  Valley  Co., 

Rep.  33   (railway  grant);   Rasmussen  27  Utah,  284,  75  Pac.  748;  Nippel  v. 

v.    Blust    (1909),    85    Neb.    198,    133  Forker,  9  Colo.  App.  106,  47  Pac.  766; 

Am.   St.   Rep.   650,    122   N.  W.   862;  Nippel  v.  Forker,  26  Colo.  74,  56  Pac. 

and  as   to  a   pipe-line,  Le  Quime   v.  5?7.     See  infra,  sec.  502,  changes  of 

Chambers   (1908),  15    Idaho,  405,  98  ditches. 

Pac.    415,   21    L.   R.   A.   76      (home-  18  Infra,  sec.  431. 


19  July   7,   1908;    37  Land  Dec.   6.    / 
13  Cottonwood     D.     Co.     v.     Thorn,       Compare  Minidoka   Co.   v.   Weymouth 
suPra-  (Idaho),  113  Pac.  454   (railway  right 

TVT  K  ^To^V'   !!U8t    (   S'loo       of  way  over  homestead  land  of  United 
Neb.  198,  133  Am.  St.  Rep.  650,  122       States  reclamation  project). 


276  (3ded.)     Pt..H.     CALIFORNIA  -  COLORADO  DOCTRINES.  §259 

thereafter  must  not  disturb.  Proceeding  upon  the  theory  of  grant 
from  the  United  States  as  landowner,  under  the  California  doc- 
trine the  relation  between  the  prior  settler  and  the  subsequent 
appropriator  is  that  of  successive  grantees  from  the  same  owner, 
and  the  later  grant  can  cover  only  what  was  left  after  the  earlier 
one  was  made.  This  is  the  distinctive  feature  of  what  is  laid 
down  in  Lux  v.  Haggin,20  affirming  Crandall  v.  Woods,21  and 
affirmed  in  a  long  list  of  cases,22  and  is  what  is  called  "the  Cali- 
fornia doctrine." 

What  riparian  rights  consist  of  is  fully  considered  in  the  next 
part  of  this  book,  devoted  to  the  common-law  system. 

In  California,  prior  settlers  on  riparian  land,  whether  home- 
steads, pre-emptions,  railway  grants  or  whatever  the  nature  of 
their  holding,  have  the  rights  of  riparian  owners,  which  later 
appropriators  cannot  take  away,  though  they  go  on  other  and 
vacant  public  land  to  do  it.  In  States  following  the  Colorado  doc- 
trine, riparian  rights  can  never  be  acquired  by  anyone,  rejecting 
the  California  doctrine.  These  are  matters  already  fully  set  forth, 
and  authorities  .cited  elsewhere.23 

The  law  of  appropriation  under  the  California  doctrine  is  lim- 
ited to  waters  upon  the  public  domain.  The  United  States  holds 
those  waters  open  to  free  use,  so  long  as  they  belong  to  the  United 
States,  but  when  the  United  States  parts  with  the  land  over  which 
the  waters  flow,  the  California  law  says  it  parts  with  its  right  to 
dispose  of  the  water;  the  private  landowner  is  thereafter  the  one 
whose  right  of  disposal  is  paramount.24 

The  settler's  riparian  right  will  attach  to  the  surplus  over  prior 
appropriations,  if  there  be  prior  appropriators  who  do  not  use  the 

20  69  Cal  255,  10  Pac.  674.  Important     modification     of     the 

21  8   Cal.    136,    1   Morr.   Min.   Rep.  ground    taken    under   the     California 
604.    See  especially  the  passage  quoted  doctrine  has  very  recently  been  made 
supra,  sec.  156,  from  Moore  v.  Smaw,  in  Oregon.     Hough  v.  Porter,  51  Or. 
17  Cal.  199,  79  Am.  Dee.  123,  12  Morr.  318,  95   Pac.   732,  98  Pac.   1098,   102 
Min.  Rep.  418.  Pac.  728.    See  supra,  sec.  129. 

22  E.  g.,  see  Sturr  v.  Beck,  133  U.  In   Nebraska   the   law   is   somewhat 
S.  541,  10  Sup.  Ct.  Rep.  350,  33  L.  Ed.  like    that     of    Oregon    as    to     lands 
761;  McGuire  v.  Brown,  106  Cal.  660,  patented  since  1889,  the  date  in  which 
39  Pac.  1060,  30  L.  R.  A.  384;  Har-  riparian  rights  are  held  abrogated  in 
grave  v.  Cook,  108  Cal.  72,  41  Pac.  18,  Nebraska    by    State    statute.     Supra, 
30  L.  R.  A.  390;  Miller  v.  Madera  etc.  sec.  126. 

Co.,  155  Cal.  59,   99  Pac.  502,  22  L.  24  Crawford  v.  Hathaway,  67  Neb. 

R.  A.,  N.  S.,  391    (opinion  on  rehear-  325,  108  Am.  St.  Rep.  647,  60  L.  R. 

ing).     See  cases  supra,  sec.   117.  A.  889,  93  N.  W.  781. 

23  Supra,  sees.  117,   118. 


S  259  Ch.  12.     APPROPRIATORS  AND  SETTLERS.       (3d  cd.)  277 

whole  stream,  and  his  riparian  right  to  such  surplus  will  prevail 
over  later  appropriators.25 

As  to  any  surplus  over  the  requirements  of  the  riparian  owner, 
reference  is  made  to  later  chapters.1  As  a  general  statement,  his 
right  is  not  limited  by  requirements  or  uses. 

The  following  passages  state  the  rule  in  California:  "Both  the 
right  to  appropriate  water  on  the  public  lands  and  that  of  the 
occupant  of  portions  of  such  lands  are  derived  from  the  implied 
consent  of  the  owner,  and  as  between  the  appropriator  of  land 
or  water  the  first  possessor  has  the  better  right.  The  two  rights 
stand  upon  an  equal  footing,  and  when  they  conflict  they  must 
be  decided  by  the  fact  of  priority.2  Since  the  United  States,  the 
owner  of  the  land  and  water,  is  presumed  to  have  permitted  the 
appropriation  of  both  the  one  and  the  other,  as  between  themselves 
the  prior  possessor  must  prevail. ' ' 3  Likewise,  in  a  very  early 
case,  "One  who  locates  upon  public  lands  with  a  view  of  appro- 
priating them  to  his  own  use  becomes  the  absolute  owner  thereof 
as  against  everyone  but  the  government,'4  and  is  entitled  to  all  the 
privileges  and  incidents  which  appertain  to  the  soil,  subject  to  the 

single  exception  of  rights  antecedently  acquired The  rule 

'qui  prior  est  in  tempore  potior  est  in  jure'  must  apply."  5 

We  add  quotations  from  other  States  following  the  California 
doctrine:  In  Montana  it  was  said  in  an  early  case  allowing  appro- 
priation: "This  decision,  it  will  be  understood,  does  not  go  to  the 
extent  of  allowing  parties  to  appropriate  and  divert  water  so  as 
to  prevent  the  same  from  flowing  over  land  to  which^  a  party 
had  obtained  the  government  title  after  the  acquisition  of  this  title. 
If  no  one  before  the  pre-emption  and  entry  of  land  by  a  party 
has  acquired  the  right  to  divert  the  waters  of  a  stream,  then  the 
patent  from  the  general  government  conveys  the  water  as  an-  inci- 
dent to  the  soil  over  which  it  flows.  If  it  has  been  appropriated 

25  Barrows  v.  Fox,  98  Cal.  63,  32  3  LUX  v.   Haggin,  69   Cal.   255,   at 

Pac.   811;    Faulkner   v.   Rondoni,   104  355,  10  Pac.  674. 

Cal.  140,  37  Pac.  883 ;  Avery  v.  John-  4  As  to  the  exception  of  the  govern- 

son    (Wash.),    109    Pac.    1028.      Cf.  ment  in  this  early  case,  see  supra,  sec. 

Hutchinson  v.  Watson  D.  Co.   (1909),  91. 

16  Idaho,  484,  133  Am.  St.  Rep.  125,  5  Crandall  v.  Woods,  8  Cal.  136,  1 

101  Pac.  1059.  Morr.  Min.  Rep.  604. 

1  Infra,  sec.  755,  between  riparian  In    a    recent    case    (Duckworth    v. 
owners;    sec.   814  et   seq.,   between   a  Watsonville  etc.  Co.,  150  Cal.  520,  89 
riparian  and  a  nonriparian  owner.  Pac.    338),    Mr.    Justice    Shaw    said: 

2  Citing   Irwin   v.    Phillips,    5   Cal.  "The  effect  of  an  appropriation  under 
140,  63  Am.  Dec.  113,  15  Morr.  Min.  the  statute,   when   completed,   is   that 
Rep.  178.  the   appropriator   thereby   acquires   a 


278  (3ded.)     Pt.  II.     CALIFORNIA  -  COLORADO  DOCTRINES.  §259 

before  the  time  when  the  patent  takes  effect,  it  does  not."6  In 
Washington:  "The  right  to  appropriate  water  for  mining  and  agri- 
cultural purposes  from  watercourses  on  the  public  domain  is  sanc- 
tioned by  acts  of  Congress,  and  recognized  by  all  the  courts;  but 
when  the  government  ceases  to  be  the  sole  proprietor,  the  right  of 
the  riparian  owner  attaches,  and  cannot  be  subsequently  invaded 
in  those  States  where  the  common-law  doctrine  of  riparian  rights 
prevails."7  In  Nebraska:8  "We  conclude,  therefore,  that  in  this 
State,  under  any  view  we  may  take  of  the  subject,  the  right  of 
riparian  proprietors  to  the  use  of  the  waters  flowing  in  the  streams 
to  which  their  lands  are  adjacent,  when  once  attached,  is,  in  its 
nature,  a  vested  right  of  property,  a  corporeal  hereditament,  being 
a  part  and  parcel  of  the  riparian  land  which  is  annexed  to  the  soil, 
and  the  use  of  it  is  an  incident  thereto  which  the  owners  cannot 
rightfully  be  deprived  of  or  devested  except  by  grant,  prescription, 
or  condemnation,  with  compensation  by  some  of  the  means  and 
methods  recognized  by  law  for  the  taking  or  damaging  of  private 
property  for  public  use. ' '  * 

In  the  supreme  court  of  the  United  States:  In  Sturr  v.  Beck,10 
the  court  said  that  when  the  government  ceased  "to  be  the  sole 
proprietor,  the  right  of  the  riparian  owner  attaches  and  cannot 
be  subsequently  invaded,"  and  that  "the  riparian  owner  has  the 

right  superior  to  that  of  any  subse-  9  In  a  late  South  Dakota  case  where 
quent  appropriator  on  the  same  plaintiff  appropriated  water  for  non- 
stream But  he  acquires  there-  riparian  use  after  defendants  had  set- 
by  no  right  whatever  as  against  rights  tied  upon  an  upper  part  of  the  stream 
existing  in  the  water  at  the  time  his  but  before  defendants  were  using  it, 
appropriation  was  begun.  An  appro-  it  was  said:  "As  riparian  proprietors, 
priation  does  not,  of  itself,  deprive  however,  they  have  the  right,  as 

any  private  person  of  his  rights against  the  plaintiff,  to  use  sufficient 

It    affects    and    devests    the    riparian  water  for  domestic  purposes  and  for 

rights   otherwise    attaching   to    public  the    irrigation    of    all    the    cultivable 

lands  of  the  United  States,  solely  be-  riparian  land  which  can  be  irrigated, 

cause  the  act  of  Congress  declares  that  and  which  was  settled  upon  by  their 

grants  of  public  lands  shall  be  made  grantors  prior  to  the  location  of  the 

subject  to  all  water  rights  that  may  plaintiff's  appropriation.     As  to  ripa- 

have  previously  accrued  to  any  person  rian  land  settled  upon  subsequently  to 

other   than   the   grantee."     Regarding  such  location,  the  owner  thereof  is  not 

this  passage,   see   further,  supra,  sec.  entitled  to  use  any  water  for  irriga- 

246.  tion   tq   the   injury   of   the   plaintiff's 

6  Knowles,   J.,   in   Thorp   v.   Freed,  appropriation."     Redwater  etc.  Co.  v. 
1  Mont.  651.  Reed    (S.  D.),   128  N.  W.   702.     See, 

7  Nesalhous    v.    Walker,    45    Wash.  also,  Redwater  Co.  v.  Jones   (S.  D.), 
621,  88  Pac.  1032.     See,  also,  Sander  130  N.  W.  85. 

v.  Wilson,  34  Wash.  659,  76  Pac.  280.  10  133  U.  S.  541,  551,  10  Sup.  Ct. 

8  Crawford   v.   Hathaway,   67   Neb.       Rep.  350,  33  L.  Ed.  761. 
325,  108  Am.  St.  Rep.  647,  93  N.  W. 

781,  60  L.  R.  A.  889. 


§  260  Ch.  12.     APPROPRIATORS  AND  SETTLERS.       (3d  ed.)  279 

right  to  have  the  water  flow  ut  currere  solebat,  undiminished  ex- 
cept by  reasonable  consumption  of  upper  [riparian]  proprietors,  and 
no  subsequent  attempt  to  take  the  water  only  can  override  the  prior 
appropriation  of  both  land  and  water,"  etc. 

The  prior  grant  of  land  receives  this  protection  against  later 
taking  away  of  the  water  merely  because  it  is  the  same  protection 
that  is  given  to  the  whole  of  a  piece  of  land  that  is  private  prop- 
erty. The  rest  of  the  land  receives  the  same  protection.  The 
land,  by  virtue  of  a  prior  grant  from  the  government,  being  pri- 
vate, the  appropriator  cannot  build  a  ditch  over  it,  which  is  taking 
a  right  of  way.11  The  appropriator  cannot  ditch  over  a  prior 
mining  claim,12  nor  build  a  house  on  land  in  private  hands  of  an- 
other,13 nor  interfere  with  the  prior  right  of  way  of  another.14  The 
cases  in  all  States  to-day  recognize  this  inviolability  (except  by 
condemnation  on  eminent  domain)  of  the  right  of  the  prior  gran- 
tee to  the  land  itself ;  the  difference  is  only  that  the  Colorado  doc- 
trine refuses  to  extend  it  also  to  the  right  to  the  water  on  the  land. 

(3d  ed.) 

§  260.     Prior  Settlers  Who  Hold  the  Land  in  Fee.— All  land 

that  has  passed  into  private  ownership  in  fee  simple  is  fully 
within  this  rule,  and  protected  in  its  riparian  rights  against  sub- 
sequent appropriators,  though  the  appropriator  goes  on  vacant 
public  land  to  make  his  appropriation.  Usually  the  land  passes 
into  private  ownership  by  virtue  of  a  patent  under  the  homestead, 
pre-emption,  or  other  Federal  laws.  But  the  fee  may  have  been 
acquired  by  virtue  of  a  Mexican  grant,  made  before  the  United 
States  acquired  sovereignty;  and  riparian  rights  (in  jurisdictions 
recognizing  riparian  rights)  fully  attach  to  land  whose  title  is 
deraigned  under  a  Mexican  grant.15  Of  course,  the  California  rule 

11  Supra,  sec.  221  et  seq.  Co.  v.  Los  Angeles,  177  IT.  S.  169,  20 

12  Jennison  v.  Kirk,  98  U.  S.  453,  Sup.    Ct.    Rep.    573,    44   L.    Ed.    720. 
25  L.  Ed.  240,  4  Morr.  Min.  Rep.  504.  Titles  under  Mexican  grants  were  set- 

13  Whitmore  v.  Pleasant  Valley  Co.,  tied  under  act  of  Congress  March  3, 
27  Utah,  284,  75  Pac.  748.  1851,   entitled,   "An   act   to    ascertain 

14  Bybee    v.    Oregon    etc.    Co.,    139  and  settle  the  private  land  claims  in 
U.  S.  663,  11  Sup.  Ct.  Rep.  641,  35  L.  the    State    of    California."     Mexican 
Ed.  305  (quaere}.  grants  enter  prominently  into  the  land 

15  TT,UX  v.  Haggin,  69  Cal.  255,   10  law  of  California.     In  Moore  v.  Smaw, 
Pac,  674;  Pope  v.  Kinman,  54  Cal.  3;  17  Cal.  199,  79  Am.  Dec.  123,  12  Morr. 
Vernon   etc.   Co.  v.  Los  Angeles,   106  Min.    Rep.    418,    Judge    Field   held   a 
Cal.   237.   39   Pac.   762 ;    City   of   Los  confirmation  of  a  Mexican  grant  to  be 
Angeles  v.  Pomeroy,  124  Cal.  597,  57  ecfuivalent     to     an     ordinary     United 
Pac.     585 ;      Pomeroy     on     Riparian  States  patent.     The  supreme  court  of 
Rights,  sec.  42.     See  Crystal  Springs  the  United  States  now  holds  the  con- 


280  (3ded.)     Pt.  H.     CALIFORNIA  -  COLORADO  DOCTRINES. 


§261 


does  not  apply  in  jurisdictions  where  riparian  rights  are  rejected 
in  toto.1Q 
Riparian  rights  attach  likewise  to  a  grant  of  State  lands.17 

(3d  ed.) 

§  261.    Prior  Settlers  Before  Patent. — As  we  have  repeatedly 

said  of  the  California  law,  "the  right  to  divert  water  from  a 
riparian  owner  has  never  been  recognized  by  customs,  laws,  or  de- 
cisions of  courts  in  this  State.  On  the  contrary,  all  the  decisions 
of  this  court  as  to  acquiring  water  by  naked  appropriation  have 
been  based  on  the  fact  that  the  water  was  on  the  public  domain,  and 
that  there  were  no  riparian  owners  to  'complain. ' ' 18 

The  only  question  upon  the  matter  which  ever  existed  in  the 
California  reports  was,  When  did  the  land  become  private  respect- 
ing rights  of  way  or  waters  thereon?  Was  it  from  the  mere 
taking  possession  by  the  settler?  Or  was  it  from  the  date  he 
entered  an  application  for  the  land  in  the  land  office?  Or  was  it 
when  he  made  final  proof  in  the  land  office?  Or  was  it  when  he 
got  a  certificate  from  the  land  office  of  full  payment  to  the  United 
States  for  the  land?  Or,  finally,  was  it  only  when  a  patent  actu- 
ally issued  to  him  for  the  land?  This  matter  remained  long  in 
conflict,  though  to-day  it  is  well  settled  that  riparian  rights  are 
protected  from  the  first  step  necessary  to  acquire  patent.  The 


trary.  Bouquillas  etc.  Co.  v.  Curtis, 
213  U.  S.  339,  29  Sup.  Ct.  Rep.  493, 
53  L.  Ed.  822.  It  is  now  held  a  con- 
firmation and  not  a  quitclaim.  Los 
Angeles  Co.  v.  Los  Angeles,  217  U.  S. 
217,  30  Sup.  Ct.  Rep.  452. 

16  Gutierres  v.  Albuquerque  etc.  Co., 
188  U.  S.  545,  23  Sup.  Ct.  Rep.  338, 
47  L.  Ed.  588.  Before  the  treaty  of 
Guadalupe  Hidalgo  or  the  Gadsden 
purchase,  landowners  are  held  in 
Arizona  not  to  have  had  the  rights  of 
riparian  owners,  and  hence  that  no 
such  right  attaches  to  a  Mexican  grant 
so  as  to  be  preserved  by  confirmation 
of  the  grant  after  the  United  States 
acquired  sovereignty.  On  the  con- 
trary, the  Mexican  law  resembled  (it 
is  held  in  Arizona)  the  law  of  appro- 
priation rather  than  the  law  of  ripa- 
rian rights.  Boquillas  Land  Co.  v. 
Curtis,  11  Ariz.  128,  89  Pac.  504. 
Affirmed  in  Boquillas  etc.  Co.  v.  Cur- 
tis, 213  U.  S.  339,  29  Sup.  Ct.  Rep. 
493,  53  L.  Ed.  822. 


And  there  is  an  exception  even  in 
California,  which  subordinates  the 
Mexican  grant's  riparian  rights  to  the 
pueblo  right  of  the  city  of  Los  Angeles. 
Los  Angeles  Co.  v.  Los  Angeles 
(1910),  217  U.  S.  217,  30  Sup.  Ct. 
Rep.  452,  54  L.  Ed.  736.  See  supra, 
sec.  68. 

17  Lux  v.  Haggin,  69  Cal.  255,  10 
Pae.  674,  saying:   "Our  conclusion  on 
this  branch  of  the  case  is  that  section 
1422  saves  and  protects  the  riparian 
rights  of  all  those  who,  under  the  land 
laws  of  the  State,  shall  have  acquired 
from  the  State  the  right  of  possession 
to  a  tract  of  riparian  land  prior  to  the 
initiation  of  proceedings  to  appropri- 
ate water  in  accordance  with  the  pro- 
visions of  the  code." 

18  T.  B.  McFarland,  counsel,  in  Os- 
good  v.  El  Dorado  etc.  W.  Co.,  56  Cal. 
572,    5   Morr.   Min.   Rep.   37,   later   a 
member  of  the  supreme  court. 


§  261  Ch.  12.     APPROPRIATORS  AND  SETTLERS.       (3d  ed.)  281 

patent  relates  back  to  the  first  step  to  acquire  it,  just  as  the  water  ap- 
propriation relates  back  to  posting  of  notice  or  commencement  of 
work.18* 

The  difficulty  was  that,  in  the  pioneer  days  all  possessions  (or 
"possessory  rights"),  whether  of  waters  or  mines  or  lands,  were, 
in  technical  law,  mere  trespassers  against  the  government  as  owner 
of  the  public  lands  and  had,  it  was  claimed,  no  actual  rights  until 
patent.  But  Crandall  v.  Woods 19  protected  the  settler  against 
later  diversion,  from  the  very  date  of  occupancy  or  taking  pos- 
session of  the  land,  and  similar  dicta  appeared  in  other  early  Cali- 
fornia cases.20  So,  likewise,  the  act  of  1866  contains  a  proviso  that 
an  appropriation  must  not  conflict  with  the  "possession"  of  any 
settler  on  the  public  domain.21  Notice  may  also  be  taken  of  an 
early  Colorado  act,  copied  in  other  States,  that  one  holding  a 
possessory  claim  to  land  on  a  stream  bank  should  have  preserved 
to  him  a  right  to  use  the  water  "to  the  fullest  extent  of  the  soil."  22 
However,  the  contrary  was  held  in  early  Nevada  cases,  saying 
he  would  be  protected  only  when  patent  issues,23  and  likewise 
the  supreme  court  of  the  United  States  at  first  refused  to 
consider  a  mere  riparian  possessor  as  having  any  riparian  rights 
until  patent  actually  issued,24  and  for  a  time  the  California 
court  withdrew  from  the  position  taken  in  the  first  cases  and  held 
that,  until  patent  actually  issues  for  the  land,  or  at  least  until 
full  payment,  riparian  rights  were  not  to  be  protected  against 
later  appropriation.25 

But  to-day  it  is  well  settled  that  a  patent  takes  effect  (at  least 
as  against  water  appropriators)  by  relation  back  to  the  initial 

I8a  Infra,  sec.  393  et  seq.  Saw.  441;  Jennison  v.  Kirk,  98  U.  S. 

19  8   Gal.    136,    1   Morr.   Min.   Rep.  453,  25  L.  Ed.  240,  4  Morr.  Min.  Rep. 
604,  affirmed  in  Leigh  v.  Ditch  Co.,  8  504,  construing  the  proviso  in  the  act 
Cal.  328,  12  Morr.  Min.  Rep.  97.  of    1866    to    this    effect.     But    notice 

20  E.   g.,   Hill  v.   Newman,   5    Cal.  that   the   act   also   speaks   of   "home- 
445,  63   Am.  Dee.   140,  4  Morr.  Min.  steads  allowed." 

Rep.  513,  saying  prior  location  upon  22  Supra,  sec.   119. 

the  land  gave  rights;  but  see  Irwin  v.  23  Covington  v.  Becker,  5  Nev.  281; 

Phillips,  5  Cal.  140,  63  Am.  Dec.  113,  Hobart  v.  Ford,  6  Nev.  77,  15  Morr. 

15  Morr.  Min.  Rep.   178,  refusing  to  Min.  Rep.  236.;  Lake  v.  Tolles,  8  Nev. 

consider    the    occupant    a    "tenant    at  285. 

will"  of  the  government.  24  Basey  v.  Gallagher,  87  U.  S.  670, 

21  U.  S.  Rev.  Stats.,  sec.  2339.    See  22  L.  Ed.  452,  1  Morr.  Min.  Rep.  683. 
McGuire    v.     Brown,     106     Cal.     660,  25  Osgood  v.  Water  Co.,  56  Cal.  571, 
39  Pac.   1060,  30  L.  R.  A.  384;   Tit-  5    Morr.    Min.    Rep.    37;     Farley    v. 
comb   v.   Kirk,   51   Cal.   288,   5   Morr.  Spring  Valley   etc.   Co.,   58   Cal.   142. 
Min.   Rep.    10;    Jacob    v.   Lorenz,    98  Not  until  final  proof  was  the  holding 
Cal.   335,   33   Pac.    119;    Woodruff   v.  originally    in     Washington.     Ellis    v. 
North  Bloomfield  Co.,  18  Fed.  753,  9  Pomeroy  etc.  Co.,  1  Wash.  572,  21  Pac. 


282   (3ded.)     Pt.  II.     CALIFORNIA  -  COLORADO   DOCTRINES.  §261 


step  to  acquire  it;  and  the  first  formal  step  under  the  land  laws 
for  acquiring  the  land  (upon  surveyed  land,  filing  entry  or  ap- 
plication in  the  land  office)  is  to-day  sufficient  to  entitle  the 
settler  to  protection  in  his  riparian  rights  against  subsequent  appro- 
priators.1  "It  was  held  in  McGuire  v.  Brown,2  which  is  the  lead- 
ing case  in  the  State  and  a  case  most  excellently  reasoned,  that  the 
statutes  above  quoted3  do  not  confer  the  right  upon  an  appro- 
priator  of  water  on  public  land  to  go  upon  land  after  its  entry  by 
another  as  a  homestead  but  before  the  claimant  had  made  final 


27.  Sue,  also,  Tynon  v.  Despain 
(1896),  22  Colo.  240,  43  Pac.  1039. 
This  was  the  real  point  involved  in 
this  Colorado  case,  though  the  Colorado 
law  now  proceeds  upon  wholly  dif- 
ferent considerations. 

There  has  been  much  uncertainty 
in  the  law  of  this  matter  so  far  as 
concerns  the  related  matter  of  rail- 
way rights  of  way  over  the  land  of 
existing  settlers  before  patent.  Thus, 
while  at  one  time  it  was  held  that  a 
railroad,  under  grant  of  Congress, 
could  locate  its  road,  without  com- 
pensation, over  an  existing  unpatented 
mining  claim  (Doran  v.  Central  Pac. 
Co.,  24  Cal.  245),  or  an  existing  pre- 
emption claim  (People  v.  Shearer,  30 
Cal.  645;  Southern  Pac.  Co.  v.  Burr, 
86  Cal.  282,  24  Pac.  1032;  Western 
P.  Ry.  v.  Tevis,  41  Cal.  489),  or  over 
an  existing  ditch  (Bybee  v.  Oregon 
etc.  Co.,  139  U.  S.  680,  11  Sup.  Ct. 
Rep.  641,  35  L.  Ed.  305),  yet  the  usual 
holding  has  protected  the  possessory 
claim  against  the  railroad.  As  to  a 
mining  claim,  Alaska  etc.  Co.  v.  Cop- 
per etc.  Ry.  (Alaska,  1908),  160  Fed. 
862.  87  C.  C.  A.  666;  South.  Cal.  Ry. 
Co.'v.  O'Donnell,  3  Cal.  App.  385,  85 
Pac.  932;  as  to  a  pre-emption  claim, 
Washington  etc.  Co.  v.  Osborne 
(1889),  2  Idaho,  527,  557,  21  Pac. 
421;  as  to  a  homestead  claim,  John- 
son v.  Bridal  etc.  Co.  (Or.  1893),  24* 
Or.  182,  33  Pac.  528;  Larsen  v.  Ore- 
gon Ry.  &  Nav.  Co.  (1890),  19  Or. 
240,  23  Pac.  974;  Spokane  Falls  etc. 
Co.  v.  Ziegler,  167  U.  S.  65,  17  Sup. 
Ct.  Rep.  728,  42  L.  Ed.  79.  See,  also, 
37  Land  Dec.  789.  The  question  is 
newly  arising  under  the  National  Ir- 
rigation Act,  as  to  how  far  the  United 
States  must  compensate  unpatented 
settlers  on  land  withdrawn  for  the 
national  irrigation  projects,  it  being 


recently  held  that  they  are  not  entitled 
to  compensation.  United  States  v. 
Hansen  (Wash.  1909),  167  Fed.  881. 
See,  also,  38  Land  Dec.  603;  Mes- 
senger v.  Kingsbury  (Cal.,  Nov.  21, 
1910),  112  Pac.  65,  dictum.  The  na- 
tional irrigation  case  presents  direct 
action  by  the  United  States;  the  rail- 
way cases  presented  action  under  an 
express  act  of  Congress;  but  in 
theory  these  are  no  different  from  the 
water  cases,  which,  in  California,  also 
rest  the  appropriation  of  water  in 
grant  from  the  United  States ;  and  in 
the  water  law  it  is  now  well  settled 
that  the  riparian  rights  of  the  posses- 
sory estate  will  be  protected  against 
appropriators  in  California.  (See  the 
opinion  of  Judge  Whitson  in  the  flan- 
sen  case.) 

1  Sturr  v.  Beck,  133  U.  S.  541,  10 
Sup.   Ct.   Rep.    350,   33   L.    Ed.    761; 
Lone  Tree  etc.  Co.  v.  Cyclone  etc.  Co., 
15  S.  D.  519,  91  N.  W.  352;  Same  v. 
Same   (S.  D.),  128  N.  W.  596;   Red- 
water  etc.  Co.  v.  Reed  (S.  D.),  128  N. 
W.  702;   Cruse  v.  McCauley,  96  Fed. 
369;   Conkling  v.   Pacific  etc.  Co.,  87 
Cal.  296,  25  Pac.  399;  Shenandoah  etc. 
Co.  v.  Morgan,  106  Cal.  409,  39  Pac. 
802;  McGuire  v.  Brbwn,  106  Cal.  660, 
39  Pac.  1060,  30  L.  R.  A.  384;  Union 
M.  &  M.  Co.  v.  Dangberg,  2  Saw.  450, 
Fed.   Gas.    No.    14,370,   8   Morr.   Min. 
Rep.  113 ;  Long  on  Irrigation,  sec.  30. 

The  certificate  of  final  entry  of 
land,  issued  by  the  United  States 
Land  Office,  is  evidence  of  the  facts 
recited  therein,  including  the  date  on 
which  settlement  was  made.  Davis  v. 
Chamberlain,  51  Or.  304,  98  Pac.  154. 

2  106   Cal.    660,   39   Pac.    1060,    30 
L.  R.  A.  384. 

3  U.  S.  Rev.  Stats.,  sees.  2339,  2340 
(act  of  1866). 


§  261  Ch.  12.     APPEOPRIATORS  AND  SETTLERS.     (3d  ed.)  283 

proof,  and  change  the  point  of  diversion  or  construct  new  ditches 
or  in  any  way  to  interfere  with  the  initiatory  rights  of  the  home- 
stead applicant.  Sturr  v.  Beck4  holds  that  the  filing  of  a  home- 
stead entry  of  a  tract  across  which  a  stream  of  water  runs  in  its 
natural  channel,  with  no  right  or  claim  of  right  to  divert  it  there- 
from, confers  a  right  to  have  the  stream  continue  running  in  that 
channel  without  diversion,  which  right,  when  completed  by  full 
compliance  with  the  requirements  of  the  statutes  on  the  part  of 
the  settler,  relates  back  to  the  date  of  the  filing  and  cuts  off  inter- 
vening adverse  claims  to  the  water.  The  reasoning  in  this  case 
would  apply  equally  to  the  relatibn  back  of  the  right  of  the  home- 
stead entryman  to  the  land  conveyed  to  him  by  the  patent."5 

A  valid  mining  location  constitutes  the  locator  a  riparian  owner 
within  this  rule ;  and  water  flowing  through  a  mining  location  can- 
not be  appropriated  later  to  the  injury  of  the  owner  of  the  mining 
claim's  riparian  rights,  though  the  claim  be  not  patented.6 

The  date  from  which  riparian  rights  are  now  protected  is,  in  the 
California  decisions  (as  already  said),  for  surveyed  land  the  filing 
of  entry  or  application  in  the  land  office — the  first  formal  step 
under  the  homestead  or  other  statutes  for  acquiring  the  land.7  In 
some  cases  in  other  jurisdictions  it  is  stated  indefinitely,  but  seem- 
ingly to  the  same  effect,  such  as  "from  the  first  necessary  pro- 
ceedings" or  "from  the  very  inception  of  his  title."8  But  there 
are  statements  in  the  cases  which  date  riparian  rights  from  the 
date  of  settlement  or  occupancy  with  intent  to  acquire  title,  though 

4  133  U.  S.  541,  10  Sup.  Ct.  Rep.  Fed.  62.     See  Cascade  Co.  v.  Empira 

350,  33  L.  Ed.  761.  Co.   (Colo.),  181  Fed.  1011. 

•-•  Atkinson  v.  Washington  Irr.  Co.,  7  To  the  same  effect,  Sturr  v.  Beck, 

43   Wash.    75,   12   Am.   St.   Rep.   978,  6  Dak.   71,   50   N.  W.  486;    Cruse  v. 

86   Pac.    1123,    protecting'  the   settler  McCauley,  96  Fed.  369. 
against  an  irrigation  company  which  8  Benton  v.  Johncox,  17  Wash.  277, 

sought  to  initiate  work  on  the  ground  61  Am'.  St.  Rep.  912,  49  Pac.  498,  39 

that  patent  had  not  yet  issued  to  the  L.  R.  A.  107,  adding:    "The  doctrine 

settler.  that  the  rights  of  a  patentee  or  gran- 

6  Crandall  v.  Woods,  8  Cal.  136,  1  tee  of  the  government  relate  back  to 

Morr.  Min.  Rep.  634;   Leigh  v.  Ditch  the  first  act  of  the  settler  necessary  in 

Co.,  8   Cstl.   323,   12   Morr.   Min.  Rep.  the  proceedings  to  acquire  title  is  also 

97.     See  Pomeroy  on  Riparian  Rights,  announced    in    the    following    cases: 

sec.  33  et  seq. ;  Macligan  v.  Kougkarok  Shepley  v.  Cowan,  91  U.  S.  330,  23  L. 

M.  Co.,  3  Alaska,  63;  Schwab  v.  Beam,  Ed.  424;  Larsen  v.  Navigation  Co.,  19 

86  Fed.  41,  19  Morr.  Min.  Rep.  279.  Or.  240,  23  Pac.  974;  Faull  v.  Cooke, 

(See  infra,  sec.  366;  as  to  this  case.)  19  Or.  455,  20  Am.  St.  Rep.  836,  26 

But   not  where  riparian   rights  are  Pac.  662.     See,  also,  Kinney  on  Irri- 

rejected  in  toto  as  under  the  Colorado  gation,  sec.  210;  Union  etc.  Min.  Co. 

doctrine.     Van  Dyke  v.  Midnight  Sun  v.   Dangberg,   2   Saw.   450.   Fed.   Cas. 

Co.  (Alaska),  177  Fed.  90;  Snyder  v.»  No.  14,370,  8  Morr.  Min.  Rep.  113." 
Colorado  etc.  Co.  (Colo.  C.  C.  A.),  181 


284  (3d  ed.)     Pt.  II.     CALIFORNIA  -  COLORADO  DOCTRINES.  §  261 

no  filings  have  yet  been  made.9  These  rulings  seem  to  be  made 
for  unsurveyed  land  only.  As  to  unsurveyed  land,  titles  relate 
back  to  the  settlement  antedating  the  filings,  since  filings  are  im- 
possible until  survey  is  made.10 

But  whether,  on  either  surveyed  or  unsurveyed  land,  naked 
occupancy  without  actually  intending  to  make  the  necessary  land 
filings  at  all,  will  protect  riparian  rights,  is  a  different  question. 
Against  a  wrongdoer  equally  without  right  to  the  land  or  water, 
it  may  be  that  the  first  mere  squatter  is  entitled  to  such  protec- 
tion.11 Thus  naked  occupancy  of  land  was  sometimes  held  alone 
enough  in  the  pioneer  days  of  California  before  the  Federal  stat- 
utes, when  a  naked  appropriation  of  land  by  taking  possession  was 
as  complete  a  right  as  the  United  States  afforded,  and  the  land 
appropriator  was  presumed  (as  against  later  water  appropriators) 
to  have  the  government's  grant  because  of  his  occupancy.12  But 
since  the  Federal  statutes  for  acquiring  land  titles,  an  express 
grant  of  land  is  provided  for,  and  to  protect  land  rights  (or 
riparian  rights  incident  thereto)  in  favor  of  one  not  proceeding 
thereunder,  and  against  one  proceeding  under  the  water  appro- 
priation statutes,  would  seem  in  violation  of  both  the  land  and 
water  statutes.  Consequently  it  has  been  held  that  a  bare  squat- 
ter upon  public  land,  surveyed  or  unsurveyed,  who  has  no  inten- 
tion of  filing  upon  the  land  or  of  proceeding  to  actually  acquire 
title,  has  no  riparian  rights  against  an  appropriator  complying 

9  Morgan  v.  Shaw,  47  Or.   333,  83  of   settlement   with  intent  to  acquire 
Pac.    534;    Lone    Tree    Ditch    Co.    v.  title,  provided  a   statement   was  filed 
Cyclone  Ditch  Co.,   15   S.  D.  519,   91  in   the   local   land   Office   within   three 
N.  W.   352;    Same  v.   Same    (S.  D.),  months  after  survey.     The  Homestead 
128  N.  W.  596;  Stengle  v.  Tharp,  17  Act  of  May  20,  1862,  12  Stat.  392,  did 
S.  D.  13,  94  N.  W.  402 ;  Redwater  etc.  not  originally  allow  settlements  on  un- 
Co.  v.  Reed   (S.  D.),  128  N.  W.  702;  surveyed  land;   but  after  A.  C.  May 
Faull  v.  Cooke,  19  Or.  455,  20  Am.  St.  14,  1880,  homesteading  was  also  per- 
Rep.    836,    26    Pac.    662;    Benton    v.  mitted   on   unsurveyed   land;    so   that 
Johncox,    17   Wash.   277,   61   Am.   St.  thereafter,  under  both  the  pre  emption 
Rep:  912,  49  Pac.  498,  39  L.  R.  A.  107,  and  homestead  laws  land  titles  of  set- 
saying   the   settler  is   entitled   to   the  tiers  relate  back  to  the  date  of  settle- 
common-law    rights    of    riparian    pro-  ment    and    not    merely    to    entry    of 
prietors,  as  against  subsequent  appro-  record  of  claim  in  the  land  office.     St. 
priators  of  the  water,  from  the  date  Paul  Ry.   Co.  v.  Donohue,   210  TJ.   S. 
of  their  occupancy,  with  intent  to  ac-  21,  30,  28  Sup.  Ct.  Rep.  600,  52  L.  Ed. 
quire  the  title   of  the  government  in  941;  William  Boyle,  38  Land  Dec.  603. 
pursuance  of  law.    In  Redwater  Co.  v.          n  Supra,     sec.      246,      "disseisin"; 
Jones  (S.  D.),  130  N.  W.  85,  it  is  said  infra,   sec.   319,   "trespassers";    infra, 
the  rule  is  the   same  whether  a  pre-  sec.    724,   "who   are   riparian   proprie- 
emption  or  a  homestead.  tors." 

10  U.     S.    Rev.     Stats.,    sec.     2266,  12  Crandall  v.  Woods,  8  Cal.  136,  1 
allowed  pre-emption  rights  from  date      Morr.  Min.  Rep.  634. 


§§262,263       Ch.  12.     APPEOPEIATOES  AND  SETTLERS.      (3d  ed.)  285 

with  the  water  statutes.13  Naked  possession  of  the  public  lands 
gives  no  rights  against  those  who  peaceably  seek  to  obtain  rights 
under  the  statutes  now  passed  for  that  purpose.14 

(3d  ed.) 

§  262.  Prior  Settlers  Under  the  Colorado  Doctrine. — The  fore- 
going is  the  California  doctrine.  Under  the  Colorado  doctrine,  as 
a  general  principle,  riparian  rights  can  never  be  acquired  by  any- 
one.15 Private  land  in  Colorado  through  which  a  stream  flows 
carries  no  riparian  rights,  and  at  any  time  before  water  flowing 
through  it  is  actually  appropriated  to  use  by  the  landowner  him- 
self, anyone  else  may  divert  away  the  whole  above  him,  though 
the  water  be  the  sole  element  of  value  of  the  land,  and  though 
the  land  patent  issued  before  the  adoption  of  the  provisions  in 
the  Colorado  constitution  regarding  appropriation.16  In  Colorado 
the  presence  of  water  on  land  is  not  an  element  in  damages  on 
condemning  the  land  on  eminent  domain,  where  the  landowner 
had  made  no  application  of  the  water;17  nor  does  the  Federal 
land  grant  confer  color  of  title  to  water  flowing  through  it.18 
There  is  an  early  statute  in  Colorado  and  similar  States,  to  which 
we  have  frequently  referred,  declaring  that  all  landowners  on  the 
banks  of  streams  shall  be  entitled  to  use  the  waters  to  the  full 
extent  of  the  soil;  but  this  is  held  to  refer  only  to  cases  where 
the  water  is  actually  in  use  by  the  landowner.19 

(3d  ed.) 

§  263.    Prior  Settlers  Under  the  Federal  Right  of  Way  Acts. 

Settlers  or  landowners  having  initiatory  rights  at  the  time  the 
survey  for  a  right  of  way  was  made  under  the  Federal  Right  oE 
Way  Acts 20  are,  by  the  act  of  1891,  entitled  to  damages.  The 
clause  in  this  regard  is  practically  identical  with  the  clause  in  the 
act  of  1866,  and  under  that  act  ditch  building  on  private  land  is, 

13  Lux  v.  Haggin,  69  Cal.   255,  at  *4  Lindley  on  Mines,  sec.  216  et  seq. 

432,  433,  10  Pac.  674;  Morris  v.  Bean  See  Cal.  Pen.  Code,  sec.  420. 

(Mont.),     146     Fed.     432;     Scott     v.  15  Supra,  sec.  118. 

Toomey,  8  S.  D.  639,  67  N.  W.  838;  i«  Sternberger    v.    Seaton    etc.    Co. 

Silver   Creek   etc.    Co.   v.    Hayes,    113  (1909),  45  Colo.  401,   102   Pac.   168; 

Cal.    142,    45    Pac.    191;    Kendall    v.  citing  this  book.     Cf.  Cascade  Co.  v. 

Joyce,  48  Wash.   489,   93   Pac.   1091;  Empire  Co.  (Colo.),  181  Fed.  1011. 

Avery  v.  Johnson   (Wash.),   109  Pac.  17  Siedler    v.    Seely,    8    Colo.    App. 

1028;  Hobart  v.  Ford,  6  Nev.  77,  15  499,  46  Pac.  848. 

Morr.  Min.  E«p.  236;  Lake  v.  Tolles,  18  Clark  v.  Ashley,  34  Colo.  285,  82 

8  Nev.  285,  both  Nevada  cases  being  Pac.  588. 

while  riparian  rights  were  recognized.  19  Supra,  sec.  119.     For  the  recent 

Compare    United    States    v.    Hanson  exception  in  Idaho,  see  supra,  sees.  118 

(Wash.),  167  Fed.  881.  and  185. 

20  infra,  sec.  430. 


286  (3ded.)     Pt.  II.     CALIFORNIA  -  COLOEADO  DOCTRINES.          §264 

as  just  considered,  not  sanctioned  except  by  condemnation.  The 
rule  seems  to  be  that  the  approval  of  the  Secretary  of  Interior  can 
give  no  right  of  way  over  private  land;  and  land  entered  by  a 
settler,  though  not  yet  patented,  is  private  in  this  regard.21 

In  a  suit  by  the  United  States  to  restrain  canal  building  under 
the  act  of  1891,  the  rights  of  settlers  affected  by  the  canal  cannot 
be  adjudicated  if  they  are  not  parties  to  the  suit.22 

(3d  ed.) 

§  264.     Conclusions. — (a)  The  relation  between  appropriators 

and  riparian  owners  as  respects  use  of  water  raises  no  question 
upon  the  law  of  waters  under  the  Colorado  doctrine,  as  riparian 
rights  are  not  there  recognized. 

(b)  The  relation  between  appropriators  and  riparian  proprie- 
tors under  the  California  doctrine  is  that  of  successive  grantees 
from  the  United  States  as  owner  of  the  right  to  the  water  incident 
to  the  public  lands.     Priority  of  right  on  public  land  governs  on 
the  one  hand,  as  to  whether  the  riparian  owner's  rights  prevail 
or,  not ;  on  the  other  hand,  riparian  rights  exist  in  the  surplus  over 
the  prior  appropriation.     As  to  any  surplus  over  the  possible  uses 
of  the  riparian  owner,  no  appropriation,  properly  speaking,  can  be 
made,  even  though  possibly  such  surplus  diversions  may  not,  in  all 
cases,  be  wrongful.23 

(c)  Priority  governs  between  settlers  and  ditch  builders  (irre- 
spective of  water-rights)  ;  the  settler's  right  and  the  ditch  builder's 
right  both  relating  back  to  their  initiatory  proceedings  respec- 
tively. 

21  Supra,  sec.  221  et  seq.,  ditches  on  of  the  subdivision  entered,  there  be- 

private  land.     See,  also,  Whitmore  v.  ing   no   authority   to    make   deduction 

Pleasant  Valley  Co.,  27  Utah,  284,  75  in  such  cases.     If  a  settler  has  a  valid 

Pac.   748;   Nippel  v.   Forker,   9   Colo.  claim  to  land  existing  at  the  date  of 

App.    106,    47    Pac.    766;    Nippel    v.  the  filing  of  the  map  of  definite  loca- 

Forker,    26    Colo.    74,    56    Pac.    577;  tion,  his  right  is  superior,  and  he  is 

Baldridge   etc.   Co.  v.   Leon,   20   Colo.  entitled    to    such    reasonable    measure 

App.   518,  80  Pae.  477,  and  cases  in  of  damages  for  right  of  way  as  may 

sec.  261,  note  21,  supra.  be  determired  upon  by  agreement  or 

The  land  office  says,  in  a  circular  in  the  courts,  the  question  being  one 
of  June  6,  1908,  containing  regula-  that  does  not  fall  within  the  jurisdic- 
tions concerning  rights  of  way:  "All  tion  of  this  department." 
persons  settling  on  a  tract  of  public  22  United  States  v.  Lee  (N.  M.), 
land,  to  part  of  which  right  of  way  110  Pac.  607.  See  infra,  sec  626  et 
has  attached  for  a  canal,  ditch,  or  seq. 

reservoir,  take  the  land  subject  to  such  23  Infra,  sec.  824  et  seq. 

right   of  way,   and  at  the   total  area 

§§  265-274.     (Blank  numbers.) 


PART  III. 

THE  LAW  OF  PRIOR  APPROPRIATION. 

CHAPTER  13. 
ELEMENTS  OP  A  RIGHT  BY  APPROPBIATION. 

§  275.  Introductory. 

§  276.  The  right  is  usufructuary. 

§  277.  No  property  in  the  "corpus"  of  the  water. 

§  278.  No  property  in  the  channel. 

§  279.  The  right  is  exclusive. 

§  280.  Distinguished  from  right  to  a  ditch. 

§  281.  Independent  of  mode  of  enjoyment. 

§  282.  Recent  tendency  to  the  contrary. 

§  283.  Eeal  estate. 

§  284.  Same — Taxation. 

§  285.  An  estate  of  freehold. 

§  286.  Conditional. 

§  287.  An  incorporeal  hereditament. 

§  288.  Definition. 

§  289.  Same. 

§§  290-298.     (Blank  numbers.) 

(3d  ed.) 

§  275.  Introductory. — In  the  law  of  watercourses  the  rules 
governing  the  usufruct  in  natural  streams  form  the  bulk  of  the 
law.  The  law  of  watercourses  is  a  law  of  natural  resources.  We 
shall  deal  with  this  body  of  law  under  two  systems  prevailing 
in  the  Western  States:  first,  the  system  of  prior  appropriation 
(the  system  of  priorities),  which  gives  unequal  rights  in  streams 
according  to  the  relative  times  of  beginning  use;  second,  the 
common  law  of  riparian  rights  (the  system  of  correlative  rights), 
which  gives  equal  rights  to  all  riparian  proprietors  without  re- 
gard to  the  relative  times  of  beginning  use.  The  reason  for  con- 
sidering them  in  this  order  is  that  the  common  law,  in  Western 
jurisdictions  applying  it,  will  not  come  into  full  force  until  the 
riparian  lands  are  well  settled;  while  the  law  of  prior  appropri- 
ation, in  the  present  day  of  large  stretches  of  vacant  unsettled 

(287) 


288  (3d  ed.)     Pt.  III.     THE  LAW  OF  PEIOR  APPKOPKIATION.       §  276 

public  land,  is  (outside  of  California,  where  private  land  pre- 
dominates in  agricultural  regions)  of  more  frequent  application 
at  the  present  time,  even  in  the  jurisdictions  which,  as  to  private 
lands,  apply  the  common-law  system. 

Speaking  now  of  the  law  of  prior  appropriation,  attention  is 
again  called  to  the  transition  which  it  is  undergoing  within  itself. 
From  a  possessory  system,  arising  as  a  possessory  right  upon  the 
public  domain,  acquired  by  taking  possession,  measured  by  capac- 
ity of  ditch  (the  amount  in  possession)  and  lasting  until  posses- 
sion is  intentionally  abandoned,  it  is  changing  to  a  "particular 
use"  basis,  acquired  by  actual  use,  measured  by  beneficial  use 
alone,  and  lost  by  nonuse  without  regard  to  intention  to  abandon 
or  relinquishment  of  possession;  a  change  set  forth  more  in 
detail  in  a  preceding  chapter.1  Consequently,  the  elements  of 
the  right  are  more  or  less  in  a  state  of  flux ;  and  although  to-day 
they  have  the  form  set  forth  in  the  following  sections,  departures 
from  time  to  time  may  be  expected  from  many  rulings  to-day 
made  in  some  of  these  matters. 

(3d  ed.) 

§  276.   -The  Bight   is   Usufructuary. — Speaking  of  "qualified 

property"  as  opposed  to  an  absolute  right  of  property,  Black- 
stone  says:2  "Many  other  things  may  also  be  the  objects  of 
qualified  property.  It  may  subsist  in  the  very  elements  of  fire 
or  light,  of  air,  and  of  water.  A  man  can  have  no  absolute  per- 
manent property  in  these,  as  he  may  in  the  earth  and  land ;  since 
these  are  of  a  vague  and  fugitive  nature,  and  therefore  can  admit 
only  of  a  precarious  and  qualified  ownership,  which  lasts  so  long 
as  they  are  in  actual  use  and  occupation,  but  no  longer.  If  a 
man  disturbs  another,  and  deprives  him  of  the  lawful  enjoyment 
of  these;  if  one  obstructs  another's  ancient  windows,  corrupts 
the  air  of  his  house  or  gardens,  fouls  his  water,  or  unopens  and 
lets  it  out,  or  if  he  diverts  an  ancient  watercourse  that  used  to 
run  to  the  other's  mill  or  meadow;  the  law  will  animadvert 
hereon  as  an  injury,  and  protect  the  party  injured  in  his  posses- 
sion. But  the  property  in  them  ceases  the  instant  they  are  out 
of  possession ;  for,  when  no  man  is  engaged  in  their  actual  occu- 
pation, they  become  again  common,  and  every  man  has  equal 
right  to  appropriate  them  to  his  own  use."3 

1  Supra,  sec.  139.  3  This  quotation  is  given  as  an  ex- 

2  Book  II,  chapter  25,  p.  3&5.  planation  of  what  is  meant  by  a'usu- 


§  277  Ch.  13.     ELEMENTS  OF  BIGHT.  (3d  ed.)  289 

The  right  of  an  appropriates  is  likewise  only  usufructuary. 
Although  for  shortness'  sake,  the  appropriator  is  spoken  of  as 
the  owner  of  the  water,  yet  there  is  no  property  in  the  water 
itself  nor  in  the  channel  of  the  stream  conferred  by  the  appro- 
priation ;  the  appropriator  owns  a  right  only  to  have  the  flow  and 
use  of  the  stream,  which  is  called  his  "water-right."4  The 
stream  water  itself  is  in  the  "negative  community,"  the  prop- 
erty of  no  one ;  or,  by  the  recent  Water  Code  form  of  expression, 
"belongs  to  the  public"  or  to  the  "State  in  trust  for  the  peo- 
ple."6 

(3d  ed.) 

§  277.  No  Property  in  the  "Corpus"  of  the  Water.— Property 
in  the  corpus  of  the  waters  is  not  recognized,  so  long  as  flowing 
naturally;  the  naturally  flowing  substance  is  like  the  air  in  the 
atmosphere,  incapable  of  being  owned.  "This  court  has  never 
departed  from  the  doctrine  that  running  water,  so  long  as  it  con- 
tinues to  flow  in  its  natural  course,  is  not,  and  cannot  be,  made 
the  subject  of  private  ownership.  A  right  may  be  acquired  to  its 
use,  which  will  be  regarded  and  protected  as  property;  but  it 
has  been  distinctly  declared  in  several  cases  that  this  right  car- 
ries with  it  no  specific  property  in  the  water  itself."  Adding 
that  it  may  be  different  with  water  in  a  ditch  severed  from  the 
natural  stream.6 

Hence,  the  appropriator  cannot  sue  for  the  value  of  water  at 
so  much  per  inch  or  gallon  diverted  from  the  stream  above  him 
by  another;  he  must  declare  for  the  damage  to  his  enterprise 
from  loss  of  the  flow  and  use.7  Likewise  a  sale  of  the  water- 

fructuary  right,  that  feature  'being  nor  an  appropriator  has  title  or  owner- 
common  to  both  the  systems  of  ap-  ship  in  the  water  of  the  stream.  This 
propriation  and  riparian  rights.  The  has  been  expressly  decided  with  re- 
passage  quoted  and  others  in  Black-  spect  to  appropriators.  The  same  rule 
stone  were  at  one  time  further  thought  applies  to  the  riparian  owner.  Mr. 
to  countenance  the  law  of  appropria-  Justice  Shaw,  in  Duckworth  v.  Wat- 
tion  in  England;  but  that  was  a  mis-  sonville  Water  Co.,  150  Cal.  520,  89 
understanding  of  the  passage,  and  has  Pac.  336. 

long  since  been  repudiated.  See  infra,  That  appropriation  is  only  usuf rue- 
sec.  666  et  seq.  tuary,  and  confers  no  ownership  in 

4  Riverside  etc.  Co.  v.  Gage,  89  Cal.  the  corpus  of  the  water  is  set   forth 
410,  26  Pac.  889 ;  Smith  v.  Green,  109  at  length  in  the  first  part  of  this  book. 
Cal.  229,  41  Pac.  1022.  See  especially,  sec.  18,  supra. 

5  Supra,  c.  1.  7  Parks   etc.   v.   Hoyt,   57   Cal.   44; 
C  Kidd  v.  Laird,   15   Cal.   162-180,       Riverside  etc.  Co.  v.  Gage,  89  Cal.  410, 

76  Am.  Dec.  472,  4  Morr.  Min.  Rep.       418,  26  Pac.  889. 
571.     Neither    a    riparian    proprietor 
Water  Rights — 19 


290  (3d  ed.)     Pt.  III.     THE  LAW  OF.  PRIOR  APPROPRIATION.       §  278 

right  does  not  mean  the  delivery  of  any  specific  quantity  of 
water.8  It  does  not  sell  the  water  itself,  but  only  the  right  to 
use  it.9  Nor  can  one  set  up  a  claim  to  water  after  it  has  been 
allowed  to  run  off  without  intent  to  recapture.10  When,  how- 
ever, the  water  has  once  been  severed  from  its  natural  water- 
course, so  long  as  it  is  in  an  artificial  structure  such  as  reduces  it  to 
possession,  it  does  become  the  subject  of  ownership,  and  like  the 
law  respecting  the  fish  in  the  water  after  being  caught,  the  corpus 
is  private  property.11 

The  point  here  involved  is  a  fundamental  one  in  all  legal  con- 
ceptions of  rights  in  running  water  as  distinguished  from  stand- 
ing or  percolating  water,  being  borrowed  into  the  law  of 
appropriation  from  the  common  law  and  into  the  common  law 
from  the  civil  'law.  It  is  what  is  comprehended  by  the  phrase 
that  running  waters  are  "publici  juris,"  or  "belong  to  the  pub- 
lic," elsewhere  herein  discussed.12 

(3d  ed.) 

§  278.  No  Property  in  the  Channel. — Property  in  the  channel 
does  not  pass  to  the  appropriator,  but  remains  in  the  United 
States  unless  granted  as  land  to  others  under  the  homestead  or 
other  Federal  land  laws.  And,  consequently,  the  same  channel 
may  be  used  by  several  appropriators,  as  where  one  man  had  ap- 
propriated water  and  a  later  comer  above  stream  added  a  large 
volume  of  water  to  the  channel,  and  then  diverted  it  again  be- 
fore it  reached  the  former  appropriator,  thus  using  the  channel 
as  a  link  in  a  long  ditch  line.13  If  the  appropriator  happens  also 
to  own  the  channel  by  some  other  source  of  title,  he  may  sell 
it  without  affecting  the  water-right  and  vice  versa.14  Others 
may  build  a  reservoir  in  the  bed.15  If  a  river  abandons  its  chan- 
nel while  on  public  land,  the  channel  cannot,  after  title  to  the  bed 
has  passed  as  land  to  a  private  owner,  be  used  for  drainage  of 

8  Booth  v.  Chapman,  59  Cal.  149.  13  Hoffman  v.   Stone,   7   Cal.   46,  4 

9  Johnston  v.  Little  Horse  etc.  Co.,  Morr.    Min.   Rep.    520;    Butte    Co.   v. 
13  Wyo.  208,  110  Am.   St.  Rep.  986,  Vaughn,  11  Cal.  143,  70  Am.  Dec.  769, 
79  Pac.  26,  70  L.  R.  A.  341.  4   Morr.   Min.   Rep.  552.     Supra,  sec. 

10  Eddy  v.  Simpson,  3  Cal.  249,  58       38. 

Am.  Dec.  408   15  Morr.  Min.  Rep.  175.  14  D     ,    y>  gan  D-         c       4(J  Fgd 

Supra,  sec.  37  et  seq.  ^QQ 

11  Supra,  c.  3. 

12  Supra,  e.  1.     See,  also,  infra,  sec.          i3  Larimer    etc.    Co.    v.    People,    8 
688.  Colo.  614,  9  Pac.'  794. 


§279  Ch.13.     ELEMENTS  OF  RIGHT.  (3d  ed.)  291 

waste  by  an  appropriator,  since  his  appropriation  gave  him  no 
property  in  the  channel  itself.16 

(3d  ed.) 

§  279.     The  Right  is  Exclusive. — As  opposed  to  the  correlative 

rights  of  the  common  law,  whereby  all  riparian  owners  on  th'e 
stream  have  equal  rights,  under  the  law  of  appropriation  the 
rights  of  the  claimants  are  unequal.  Each  has  an  exclusive 
right  to  the  extent  of  his  prior  appropriation,  and  appropriations 
vary  greatly  in  the  extent  of  right  appropriated.  "A  party  ap- 
propriating water  has  the  sole  and  exclusive  right  to  use  the  same 
for  the  purposes  for  which  it  was  appropriated."17  So  long  as 
the  water  is  put  to  beneficial  use,  priority  alone  governs.  Full 
protection  is  given  to  the  prior  appropriator  against  all  later 
comers.18  This  exclusiveness  includes  the  right  to  tributaries 
and  sources,19  even  tributary  percolating  water  so  far  as  proof 
traces  it  as  tributary,20  and  also  storm  waters  that  are  of  annual 
occurrence.21  It  is  held:  "The  prior  appropriator  of  a  par- 
ticular quantity  of  water  from  a  stream  is  entitled  to  the  use 
of  that  water,  or  so  much  thereof  as  naturally  flows  in  the 
stream,  unimpaired  and  unaffected  by  any  subsequent  changes 
which,  in  the  course  of  nature,  may  have  been  wrought.  To  the 
extent  of  his  appropriation  his  supply  will  be  measured  by  the 
waters  naturally  flowing  in  the  stream  and  its  tributaries  above 
the  head  of  his  ditch,  whether  those  waters  be  furnished  by  the 
usual  rains  or  snows,  by  extraordinary  rain  or  snow  fall,  or  by 
springs  or  seepage  which  directly  contribute."22  It  is  said, 
"The  appropriator  took  the  water  with  the  right  to  have  the 
stream  flow  as  it  was  wont  to  flow,"23  which  is  as  strict  a  state- 
ment as  the  "aqua  currit  et  debet  currere  ut  currere  solebat"  of 
riparian  rights.  And  he  can  insist  on  the  flow,  though  he  has 

16  Bosjlino    v.    Giorgetta,    20    Colo.       is  below  considered.    Infra,  sec.  310  et 
App.  33*8,  78  Pae.  612.     Cf.   Schodde       seq. 

v.  Twin  Falls  Co.,  161  Fed.  43,  88  C.  19  infra    sec    337 
C.    A.    207,    holding    that    an    appro-  '        20  ^  '         ' 
priator  has  no  property  in  the     cur- 
rent,"   but    the    real    effect    of    the  :1  Infra,  sec.  347.     See,  also,  infra, 
decision    involves    a    different    matter  sec-  825. 

elsewhere  considered.     Infra,  sec.  310  22  Beaverhead    etc.    Co.    v.    Dillon 

et  seq.  etc.  Co.,  34  Mont.  135,  85  Pac.  880. 

17  Hoffman   v.   Stone,   7  Cal.  49,  4  23  Morris    v.    Bean,    146    Fed.    435. 
Morr.  Min.  Rep.  520.  But   see   Schodde   v.   Twin    Falls   etc. 

18  A  tendency  to  modify   this  rule  Co.  (Idaho),  161  Fed.  43,  88  C.  C.  A. 
that  priority  gives  an  exclusive  right  207. 


292  (3d  ed.)     Pt.  III.     THE  LAW  OF  PRIOR  APPROPRIATION.       §  279 

also  rights  on  another  stream  which  would  supply  him — he  can- 
not be  made  to  exhaust  his  rights  on  one  before  using  the  other.24 
This  exclusive  right  of  the  prior  appropriator  to  have  the 
natural  flow  to  the  extent  of  his  appropriation  does  not,  how- 
ever, enable  him  to  insist  upon  receiving  it  in  the  natural  chan- 
nel; the  upper  appropriator  may  instead  give  it  to  him  by 
returning  it  into  his  ditch  above  his  place  of  use— rnot  necessarily 
into  the  stream  above  the  head  of  his  ditch — if  he  gets  the  quan- 
tity to  which  he  is  entitled,  thereby  substantially  permitting  the 
substitution  of  an  artificial  flow  if  it  can  be  done  without  dam- 
age 25  (provided  that  the  party  substituting  an  artificial  flow  sus- 
tains the  burden  of  proof  (which  is  on  him)  that  he  will  not,  now 
or  in  the  future,  damage  the  prior  appropriator;  for  if  he  does 
not  plead  and  prove  this,  or  if  his  artificial  plan  has  any  element 
of  doubt,  it  will  be  unlawful).1  The  prior  appropriator  further 
has  no  right  to  waters  brought  into  the  stream  exclusively  by 
the  labor  or  artificial  works  of  another  man  who  has  not  intended 
to  abandon  them,  for  such  artificial  increments  are  not  part  of 
the  natural  flow ; 2  nor  has  he  a  right  to  any  flow  where,  from 
natural  causes,  such  as  drying  up,  the  stream  if  undisturbed 
would  not  reach  him  anyway3  (provided,  however,  that  where, 
in  the  absence  of  surface  flow  to  him,  there  is  still  an  underflow 

24  Norman  y.  Corbley,  32  Mont.  195,  Point  etc.   Co.  v.  Moroni  etc.  Co.,  21 
79  Pac.  1059.  Utah,  229,   61  Pac.   16;   Howcroft  v. 

25  Pomona  W.  Co.  v.  San  Antonio  Union  etc.  Co.,  25  Utah,  311,  71  Pac. 
W.  Co.   (1908),  152  Cal.  618,  93  Pac.  487;  Booth  v.  Trager,  44  Colo.  409,  99 
881;  Wiggins  v.  Museupiabe  etc.  Co.,  Pac.  60;   Union  etc.  Co.  v.  Dangberg 
113   Cal.    182,   54   Am.   St.   Rep.   337,  (C.  C.  Nev.),  81  Fed.  73;  City  of  Tel- 
45  Pac.  160,  32  L.  R.  A.  667;  Huffner  luride  v.  Blair,  33  Colo.  353,  80  Pac. 
v.    Sawday    (1908),    153    Cal.    86,    94  1053;   Fuller  v.  Sharp,  33  Utah,  431, 
Pac.  424,  dictum;  Fuller  v.  Sharp,  33  94  Pac.   817;    Duckworth  v.   Watson- 
Utah,   431,   94  Pac.   817;    Harrington  ville   W.   Co.,   150   Cal.   520,    89   Pac. 
v.  Demarris,  46  Or.  Ill,  77  Pac.  603,  336;   Guttierrez  v.  Wege,  145  Cal.  at 
82  Pac.   14,  1  L.  R.  A.,  N.   S.,  756;  735,  79  Pac.  449;   the  latter  two  ap- 
Chandler   v.   Austin,   4   Ariz.   346,   42  plying  the  same  rule  to  riparian  own- 
Pac.  483.  ers.     Contra,  Morris  v.  Bean,  146  Fed. 

1  Miller  v.  Bay  Cities  W.  Co.,  157  436,  saying  that  it  is  no  defense  that 
Cal.  256,  107  Pac.  115,  27  L.  R.  A.,  water  would  not  reach  plaintiff  any- 
N.   S.,   772 ;   Huffner  v.   Sawday,   153  way,  if  defendant's  diversion  is  a  con- 
Cal.  86,  94  Pac.  424.  tributing  cause.     Such  a  defense,  the 

2  Supra,  sees.  38,  61.  court  says,  is  quite  common,  as  old  as 

3  Beaverhead  etc.  Co.  v.  Dillon  etc.  irrigation,  and  perhaps  as  old  as  tres- 
•Co.,  34  Mont.  135,  85  Pac.  880;  Paige  pass    itself.     See,    also,    Petterson    v. 
v.   Rocky   Ford   etc.   Co.,   83    Cal.   84,  Payne,    43    Colo.    184,    95    Pac.    301, 
21  Pac.  1102,  23  Pac.  875;   Raymond  holding   that   there   is   a   presumption 
v.  Wimsette,  12  Mont.  551,  33  Am.  St.  against   the   validity   of   the    defense. 
Rep.  604,  31  Pac.  537;   Cruse  v.  Me-  Compare  Perry  v.  Calkins  (Cal.,  1911), 
Cauley    (Mont),  96  Fed.  373;   West  113  Pae.  136. 


§280  Ch.  13.     ELEMENTS  OF  EIGHT.  (3d  ed.)  293 

or  "subflow"  in  the  dry  bed,  the  upper  surface  diversion  must 
not  diminish  the  underflow,4  and  also  provided  the  evidence 
that  the  water  would  all  naturally  disappear  before  reaching 
plaintiff  is  clear  and  convincing,5  of  which  defendant  has  the 
burden  of  proof).6  There  is  no  right  in  the  natural  flow  such 
as  would  allow  the  ditching  back  of  a  stream  that  had  shifted  its 
course  naturally  ;  7  nor,  if  a  stream  becomes  filled  with  mud  and 
silt,  can  the  appropriator  raise  his  dam  higher  so  as  to  preserve 
the  natural  depth  there,  if  in  so  doing  the  rights  of  others  are 
interfered  with,  though  later  in  time.8 

The  right  to  exclusive  use  carries  with  it  such  right  to  exclu- 
sive flow  as  is  necessary  to  preserve  the  appropriator  's  use  with- 
out damage  to  his  use  ;  but  is  not  violated  by  any  act  that  does 
not  interfere  with  his  use  of  the  water.  The  right  to  the  flow  is 
subordinate  to  the  right  of  use,  and  cannot  exceed  it.  "The  prin- 
ciple, in  brief,  is  this:  That  where  one  is  entitled  to  the  use  of  a 
given  amount  of  water  at  a  given  point,  he  may  not  complain  of 
any  prior  use  made  of  the  water  which  does  not  impair  the  quan- 
tity or  quality  to  which  he  is  entitled,  and,  on  the  other  hand, 
he  may  not  lay  claim  to  any  excess  of  water  over  the  amount  to 
which  he  is  entitled,  however  it  may  be  produced."9 

Under  the  possessory  origin  of  the  law  of  appropriation,  the 
right  to  the  natural  flow  was  the  main  thing,10  but  the  change  to 
a  "particular  use'*  system  has  put  first  the  specific  use  made  of 
the  water,  and  subordinates  the  right  of  flow  to  the  right  of  use. 
To  that  extent,  however,  the  right  of  flow  remains  exclusive  of 
later  appropriators. 

(3d  ed.) 

§  280.  Distinguished  from  Right  to  a  Ditch.—  The  water- 
right  is  entirely  distinct  from  the  right  to  the  ditch,  canal,  or 
other  structure  in  which  the  water  is  conveyed.  The  latter  is  an 
easement  over  land.  The  former  is  an  incorporeal  hereditament 

4  Huffner  v.  Sawday,  153  Cal.  86,  7  Paige  v.  Rocky  etc.  Co.,  83  Cal. 

94  Pac.  424;  Petterson  v.  Payne,  43  84,  21  Pac.  1102,  23  Pac.  875;  Wholey 

Colo.  184,  95  Pac.  301.  v.  Caldwell,  108  Cal.  95,  49  Am.  St. 

,   A1              r           ,T  ,           .,„   p  ,„  Rep.  64,  41  Pac.  31,  30  L.  R.  A.  820. 

0^  V>  '  8 


140         P       119  etc-  Co-  v-  P™ell>  34  Cal. 

140,  93  Pac.  1112.  ' 


6  Petterson  v.  Payne,  43  Colo.  184,  Rep.  253. 

95  Pac.  301;  Miller  v.  Bay  Cities  W.  9  Pomona   W.   Co.   v.   San   Antonio 

Co.,  157   Cal.   256,   107   Pac.  115,   27  W.  Co.  (1908),  152  Cal.  618,  93  Pac. 

L.  R.  A.,  N.  S.,  772;  Huffner  v.  Saw-  881. 

day,  153  Cal.  86,  94  Pae.  424.  10  Supra,  sec.  139. 


294:  (3d  ed.)     Pt.  III.     THE  LAW  OF  PEIOE  APPROPRIATION.       §  281 

sui  generis,  in  the  flow  and  use  .of  the  stream  as  a  natural  re- 
source, and  not  an  easement.  The  water-right  and  ditch-right 
may  be  conveyed  separately,  or  the  one  may  exist  without  the 
other.  An  abandonment  of  one  does  not  necessarily  include 
abandonment  of  the  other.  One  may,  however,  be  appurtenant 
'to  the  other.  The  matter  is  discussed  and  cases  cited  at  length 
later.11 

(3d  ed.) 

§  281.  Independent  of  the  Mode  of  Enjoyment. — The  posses- 
sory origin  of  the  law  of  appropriation  of  water  has  its  strongest 
survival  in  the  rule  that  the  right  is  independent  of  ownership  or 
possession  of  any  land,  and  independent  of  the  manner,  means, 
place  or  purpose  of  use  or  of  point  of  diversion.  Upon  the  pub- 
lic domain  where  the  law  of  appropriation  arose,  no  private 
claimant  originally  owned  any  land — all  were  asserted  to  be  but 
trespassers  against  the  United  States.  Besides,  the  purposes  for 
which  appropriations  were  made  in  the  early  days — that  is,  dis- 
tribution to  miners — required  the  taking  of  water  to  distant 
lands  occupied  by  strangers  to  the  appropriator.  Possession  of  a 
stream  on  public  land  being  the  right  (the  United  States  per- 
mitting absolute  freedom  in  the  matter),  that  possession  could 
be  shifted  from  place  to  place  or  from  purpose  to  purpose,  and 
the  point  of  diversion  moved  up  or  down  stream,  all  these  things 
being  done  on  unoccupied  public  land.12 

This  has  had  strong  survival,  and  as  the  authorities  generally 
stand  to-day,  the  water  may  be  taken  from  and  over  and  be  used 
on  distant  lands  owned  entirely  by  the  government  or  (with 
their  permission)  by  other  private  parties,  as  was  and  is  fre- 
quently the  case  with  canal  companies.  This  is  a  distinguishing 
feature  of  the  law  of  appropriation.  Appropriation  is  the  doc- 
trine of  separate  ownership  of  land  and  water.13  The  original 
case  of  Irwin  v.  Phillips  u  was  such  a  case.  Title  to  land  is  in 
no  way  concerned.15  This  is  now  accepted  without  comment  in 
California.  We  may  also  quote  the  following  from  a  Montana 
case : 16  "  The  legal  title  to  the  land  upon  which  a  water- right 

11  Infra,  sees.  455,  456.  15  Santa  Paula  etc.  Works  v.  Per- 

12  Supra,  sec.  139.  alta,  113  Cal.  38,  45  Pac.  168. 

13  Crawford  etc.   Co.  v.  Hathaway,  16  Smith   v.   Denniff,   24  Mont.   20, 
60  Neb.  754,  84  N.  W.  273.  81  Am.  St.  Rep.  408,  60  Pac.  398,  50 

14  5  Cal.  140,  63  Am.  Dec.  113,  15  L.  R.  A.  741. 
Morr.  Min.  Rep.  178. 


§281 


Ch.13.     ELEMENTS  OF  RIGHT. 


(3ded.)  295: 


acquired  by  appropriation  made  on  the  public  domain  is  used 
or  intended  to  be  used  in  no  way  affects  the  appropriator's  title 
to  the  water-right."  In  a  recent  Utah  case17  it  is  said:  "The 
exclusive  right  to  use  certain  waters  in  this  State  has  always  been 
independent  of,  and  separate  from,  the  ownership  of  the  land  on 
which  the  water  was  used  or  the  ownership  of  any  land.18  The 
authorities  generally  support  this  view."19 

An  important  application  of  the  rule  is  in  the  recent  matter 
of  interstate  streams,  where  it  is  held  that  an  appropriation,  be- 
ing independent  of  the  place  of  use,  may  (in  the  absence  of 
express  statutory  prohibition)  be  made  in  one  State  for  use  in 
any  other  State.20 

The  rule  has  been  chiefly  litigated  in  regard  to  change  of  place 
of  use,  and  sale  of  the  water-right  for  use  on  different  land,  and 
citation  of  authorities  is  postponed  to  a  later  section,21  except 
for  a  few  to  show  the  prevailing  acceptance  in  the  courts  of  the 
rule  that  the  appropriation  is  independent  of  title  or  possession 
of  any  land.22 


17  Patterson  v.  Ryan  (Utah),  108 
Pac.  1118,  Mr.  Justice  Frick. 

is  Citing  Sullivan  v.  Mining  Co.,  11 
Utah,  438,  40  Pac.  709,  30  L.  R.  A. 
186. 

w  Citing  this  book,  2d  ed.,  sec.  63. 

20  Infra,  sec.  340  et  seq. 

21  Infra,  sec.  508  et  seq. 

22  California. — Calkins     v.     Sorosis 
etc.  Co.,  150  Cal.  426,  88  Pac.  1094. 

Colorado.— Coffin  v.  Left  Hand 
Ditch  Co.,  6  Colo.  443;  Thomas  v. 
Guiraud,  6  Colo.  530;  Strickler  v. 
Colorado  Springs,  16  Colo.  61,  25  Am. 
St.  Rep.  245,  26  Pac.  313;  Town  of 
Sterling  v.  Pawnee  etc.  Co.,  42  Colo, 
421,  94  Pac.  341,  15  L.  R.  A.,  N.  S., 
238;  Davis  v.  Randall,  44  Colo.  488, 
99  Pac.  322. 

Idaho. — Hard  v.  Boise  etc.  Co.,  9 
•Idaho,  589,  76  Pac.  331,  65  L.  R.  A. 
407.  See  Mahoney  v.  Neiswanger,  6 
Idaho,  750,  59  Pac.  561. 

Montana. — Hays  v.  Buzard,  31 
Mont.  74,  77  Pac.  423;  Smith" v.  Den- 
niff,  24  Mont.  20,  81  Am.  St.  Rep.  408, 
60  Pac.  398,  56  L.  R.  A.  741. 

Nevada. — Union  etc.  Co.  v.  Dang- 
berg,  81  Fed.  73. 

Oregon. — Nevada  etc.  Co.  v.  Ben- 
nett, 30  Or.  59,  60  Am.  St.  Rep.  777, 


45  Pac.  472.  It  was  held  in  Hough 
v.  Porter,  51  Or.  318,  95  Pac.  732,  98 
Pac.  1098,  102  Pac.  728,  that  a  bona 
fide  intention  to  devote  water  to  a 
beneficial  use  may  comprehend  the  use 
to  be  made  by  or  through  other  per- 
sons and  upon  lands  other  than  those 
of  the  appropriator. 

Utah. — Patterson  v.  Ryan  (Utah), 
108  Pac.  1118;  Sowards  v.  Meagher 
(Utah),  108  Pac.  1113. 

Washington.  —  Thorpe  v.  Tenem 
Ditch  Co.,  1  Wash.  566,  20  Pac.  588. 
But  see  contra,  Avery  v.  Johnson 
(Wash.),  109  Pac.  1028. 

Wyoming. — Johnston  v.  Little  Horse 
etc.  Co.,  13  Wyo.  208,  110  Am.  St. 
Rep.  986,  79  Pac.  22,  70  L.  R.  A.  341 ; 
Willey  v.  Decker,  11  Wyo.  496,  100 
Am.  St.  Rep.  939,  73  Pae.  210;  Frank 
v.  Hicks,  4  Wyo.  502,  35  Pac.  475. 
1025. 

See,  also,  Hawaiian  Com.  etc.  Co. 
v.  Wailuku  etc.  Co.,  15  Hawaii,  677; 
Pomeroy  on  Riparian  Rights,  sees.  46, 
92;  Kinney  on  Irrigation,  sec.  156; 
Gould  on  Waters,  sec.  230;  17  Am. 
&  Eng.  Ency.  of  Law,  497,  and  cases 
collected  in  65  L.  R.  A.  407,  note. 


296  (3d  ed.)     Pt.  III.     THE  LAW  OF  PRIOR  APPROPRIATION.       §  282 
(3d  ed.) 

§  282.  Same — Recent  Tendency  to  the  Contrary. — The  neces- 
sity for  taking  the  water  to  distant  lands  without  returning  it  to 
the  stream  and  making  the  right  to  the  water  independent  of 
ownership  of  riparian  land  aided  in  giving  rise  to  the  rule  that 
the  right  is  independent  of  ownership  of  any  land.  Use  on  dis- 
tant land  is  hence  characteristic.  This  characteristic  use  on 
distant  lands  involves  loss  of  the  efficiency  of  the  water  and 
is  a  necessary  evil  of  the  law  of  appropriation.  In  one  case 
the  loss  by  seepage  in  transportation  was  so  great  as  to  damage 
the  lands  passed  over.23 

Under  the  rule  of  riparian  rights  at  common  law  the  right  to 
use  the  water  is  annexed  to  riparian  lands  and  dependent  upon 
title  thereto ;  and  the  law  of  appropriation  was  a  protest  against 
fastening  the  right  to  any  land;  conforming  to  the  possessory 
origin  of  the  law  of  appropriation  and  necessities  of  miners  in 
the  early  days  in  California,  when  the  use  had  to  be  made  on 
the  public  domain  and  in  regions  where  the  mines  were  in  the 
mountains  often  away  from  the  stream  valley,  and  changed 
from  place  to  place  as  old  claims  gave  out  and  new  ones  were 
discovered.  But  to-day  it  is  sometimes  thought  unfortunate  in 
its  application  to  irrigation,  which  can  be  made  best  in  the 
valleys  near  the  stream,  orj"  at  all  events,  may  be  permanently 
carried  on  in  a  fixed  location.  The  recent  legislation,  conse- 
quently, is  attacking  this  principle,  and  in  the  arid  States  (as 
an  instance  of  the  general  change  now  going  on  from  a  possessory 
to  a  use  system)24  substituting  the  principle  "that  the  right  to 
use  the  water  for  irrigation  inheres  in  the  land  irrigated,"  and 
is  inseparable  therefrom,  or  separable  only  with  the  permission 
of  the  State  Engineer  and  publication  of  notice.25  President 

23  Stuart  v.  Noble  etc.  Co.,  9  Idaho,  Nevada.— Stats.   1905,  p.  66.     But 
766,  76  Pae.  255.  see  Stats.  1909,  p.  31. 

24  Supra,  sec.  139.  jVe«;  Mexico.— Stats.  1907,  p.  71,  c.. 

25  Arizona. — Gould  v.  Maricopa  etc.  49,  sec.  44. 

Co.,  8  Ariz.  429,  76  Pac.  598;  Slosser  w^^.j,   T^T.,,*,,      o*  1       -tan*         *A 

L  ,,  T..  '    „       „    .    •   '  n~c    Cr  North  Dakota. — Stats.   1905.  c.  34, 

v.  Salt  River  etc.  Co.,  7  Ariz.  376,  65  9o    ,-n 

Pac    332  ' 

Oklahoma. — Stats.   1905,   p.   274,   c. 
Idaho. — Laws   1903,   p.    223;    Laws      £1   sees  21   30 

19°7^  5f'     %ialS0'  ?£•  C°de8'  Oregon.-  -Stats.  1900,0.  216,  see.  65. 

sec.  3240;  Laws  1901,  sec.  9,  b. 

South  Dakota.— Stats.  1907,  p.  373, 
Nebraska. — Farmers'    Irr.    Dist.    v.       c   jgg   secs   31   49 

Frank    72  Neb.  136    100  N.  W.  286;        '  ^_g^  1905,  c.  108,  secs.  63, 
Comp.  Stats.,  sec.  6436.  60>     See>  alg0j  Comp'    Lawg'  flf 


§  282  Ch.  13.     ELEMENTS  OF  EIGHT.  (3d  ed.)  297 

Roosevelt  said  in  a  message:  *  "In  the  arid  States  the  only  right 
to  which  water  should  be  recognized  is  that  of  use.  In  irriga- 
tion this  right  should  attach  to  the  land  reclaimed  and  be 
inseparable  therefrom."  The  National  Irrigation  Congress2 
adopted  a  memorial  declaring  among  other  things  that  the  right 
to  the  use  of  water  for  irrigation  should  inhere  in  the  land 
irrigated.  Is  this  an  attempt  at  a  compromise  between  appro- 
priation and  riparian  rights?  A  characteristic  of  the  common 
law  of  riparian  rights  is  that  the  right  to  use  the  water  is 
attached  to  certain  lands;  a  characteristic  feature  of  appropria- 
tion is  that  the  appropriation  is  independent  of  title  to  or  pos- 
session of  any  lands. 

Another  evidence  of  a  tendency  to  depart  from  the  older  rule 
arises  in  connection  with  the  distribution  of  water  to  public 
uses  in  Colorado.  Under  a  tendency  to  public  ownership  of  irri- 
gation systems,  consumers  are  regarded  in  Colorado  as  owning 
the  appropriations  in  the  streams  rather  than  the  company,  and 
one  ground  for  such  ruling  is  that  in  the  connection  mentioned 
the  right  is  held  to  be  dependent  upon  the  place  where  the  use 
is  made  by  the  consumer.3  Here,  again,  the  law  is  in  a  state  of 
development,  for  the  older  view  is  still  frequently  taken  in  this 
connection  also ;  for  example,  the  supreme  court  of  the  United 
States  has  said  that  corporations  diverting  water  need  not  own 
any  land,  nor  ne  d  they  be  a  combination  of  landowners.4  And 
recent  cases  in  other  jurisdictions  have  ruled  that  the  rights  of 
canal  companies  or  any  appropriator  remain  unaffected  by  the 
fact  that  they  do  not  own  the  land  where  the  use  is  made.5 

Another  modification  and  a  return  to  the  principle,  in  this 
respect,  of  riparian  rights,  appears  in  the  New  Mexico  statute8 

sec.  1288x8  and  24,  amended  in  Laws  4  Gutierres  v.  Albuquerque  etc.  Co., 

1909,  c.  62,  p.  84.  188  U.  S.  545,  23  Sup.  Ct.  Rep.  338, 

Washington.  —  Avery     v.     Johnson  47  L.  Ed.  588.     See  Montezuma  Co.  v. 

(Wash.),  109  Pac.  1028.  Smithville  Co.,  218  U.  S.  371,  31  Sup. 

Wyoming,  in  1909,  prohibited  change  Ct.  Rep.  67,  54  L.  Ed.  1074. 

absolutely.     Laws  1909,  c.  68,  p.  112,  5  Nevada  D.  Co.  v.  Bennett,  30  Or. 

sec.  1.  .59,  60  Am.  St.  Rep.  777,  45  Pac.  472; 

See  statutes  of  other  States  in  sees.  'Hough  v.  Porter,  51  Or.  318,  95  Pac. 

506,  509,  infra,  and  in  Part  VIII  be-  732,    98    Pac.    1098,    102    Pac.    728; 

low.  Sowards  v.  Meagher  (Utah),  108  Pac. 

1  To   the   57th   Congress,    1st   Sess.  1113.     See  generally  infra,  sec.  395  et 
(Cong.  Rec.,  vol.  35,  pp.  85,  86).  seq.    (application    to    use),    and    sees. 

2  Ninth    Session    held    at    Chicago,  1324,  1338  et  seq.    (consumers  as  ap- 
Tllinois,  November  21-24,  1900.             •  propriators). 

3  Infra,  see.  1338  et  seq.  6  Laws  1907,  c.  49,  p.  71. 


5298   (3d  ed.)     Pt.  III.     THE  LAW  OF  PRIOR  APPROPRIATION.       §  283 

prohibiting  an  appropriation  for  use  beyond  the  watershed  of 
the  stream  from  which  the  water  is  taken;  and  a  recent  Idaho 
decision  that  unused  water  must  be  returned  to  the  stream  from 
which  taken  so  far  as  not  inconsistent  with  the  use  for  which 
appropriated,  even  though  there  be  no  appropriators,  but  only 
riparian  proprietors,  on  the  stream  below.7  Likewise,  some 
statutes  provide  that  an  appropriator  must  return  any  surplus 
water  to  the  stream  from  which  he  diverted  it,8  which,  so  far  as 
It  applies  (if  it  does  so  apply)  to  prior  appropriators,  is  a  great 
change,  as  hitherto  the  law  has  been  that,  being  independent 
of  place  of  use,  the  water  may  be  taken  from  use  under  one 
watershed  to  use  in  an  entirely  different  watershed.9 

Consequently,  while  the  general  rule  to-day  maintains  the 
original  possessory  basis  of  the  independence  of  the  right  upon 
its  mode  of  enjoyment,  yet  the  transition  which  the  law  of 
appropriation  is  now  undergoing  from  a  possessory  to  a  specific 
use  system  is  causing  numerous  departures.10 


(3d  ed.) 

§  283.     Real  Estate. — The  right  to  the  flow  and  use  of  water, 

being  a  right  in  a  natural  resource,  is  real  estate.11 


7  Hutchinson     v.     Watson     D.     Co. 
(1909),   16  Idaho,  484,   133  Am.   St. 
Rep.  125,  101  Pac.  1059. 

8  Nev.   Stats.   1907,   p.   30,  sec.  4; 
Mont.   Stats.   1907,   p.    109;    Cobbey's 
Nebraska   Stats.,   sec.   6813.     Such  is 
also  the  effect  of  Anderson  v.  Bass- 
man,  140  Fed.  14. 

»  In  a  Colorado  ease — Coffin  v.  Left 
Hand  Ditch  Co.,  6  Colo.  443— the  ap- 
pellee claimed  to  have  appropriated 
certain  -water  from  St.  Vrain  Creek, 
through  its  diversion  by  means  of  a 
ditch  which  conducted  the  water  to 
the  James  Creek,  thence  along  the  bed 
of  the  same  to  Left  Hand  Creek, 
where  it  was  again  diverted  by  lateral 
ditches,  and  used  to  irrigate  land  ad- 
jacent to  the  last-named  stream.  It 
was  contended  that  such  appropriation 
was  unlawful.  But  the  court  upheld 
it. 

10  See  supra,  sec.  139,  transitionary 
state  of  the  law. 

.11  California. — Civ.  Code,  sec.  801; 
Hill  v.  Newman,  5  Cal.  445,  63  Am. 
Dec.  140,  4  Morr.  Min.  Rep.  513; 
California  etc.  Co.  v.  County  of  Los 


Angeles  (1909),  10  Cal.  App.  185,  101 
Pac.  547;  Pacific  Club  v.  Sausalito 
Co.,  98  Cal.  487,  33  Pac.  322;  Fudickar 
v.  East  Riverside  Irr.  Dist.,  109  Cal. 
29,  41  Pac.  1024;  Santa  Paula  etc. 
Co.  v.  Peralta,  113  Cal.  38,  45  Pac. 
168;  South  Tule  etc.  Co.  v.  King,  144 
Cal.  450,  454,  77  Pac.  1032,  and  cases 
below  cited. 

Colorado. — Travelers'  etc.  Co.  v. 
Childs,  25  Colo.  360,  54  Pac.  1020; 
Davis  v.  Randall  (1909),  44  Colo.  488, 
99  Pac.  322;  Bates  v.  Hall,  44  Colo. 
360,  98  Pac.  3;  Wyatt  v.  Larrimer  & 
Weld  etc.  Co.,  18  Colo.  298,  36  Am. 
St.  Rep.  280,  38  Pac.  144;  Talcott  v. 
Mastin,  20  Colo.  App.  488,  79  Pac. 
973;  Burnham  v.  Freeman,  11  Colo. 
601,  19  Pac.  761. 

Idaho.— Rev.  Stats.  1887,  sec.  2825; 
Knowles  v.  New  Sweden  Irr.  Dist. 
(1909),  16  Idaho,  217,  101  Pac.  81; 
Taylor  v.  Hulett,  15  Idaho,  265,  97 
Pae.  37,  19  L.  R.  A.,  N.  S.,  535;  Ada 
Co.  etc.  Co.  v.  Farmers'  etc.  Co.,  5 
Idaho.  793,  51  Pac.  990,  40  L.  R.  A. 
485;  McGinness  v.  Stanfield,  6  Idaho, 
372,  55  Pae.  1020;  Hall  v.  Black- 


§283  Oh.  13.     ELEMENTS  OF  RIGHT.  (3d  ed.)  299 

In  Hill  v.  Newman  12  the  court  says:  "From  the  policy  of  our 
laws  it  has  been  held  in  this  State  to  exist  without  private 
ownership  of  the  soil  upon  the  ground  of  prior  location  upon 
the  land  or  prior  appropriation  and  use  of  the  water.  The  right 
to  water  must  be  treated  in  this  State  as  it  has  always  been 
treated,  as  a  right  running  with  the  land,  and  as  a  corporeal 
privilege  bestowed  upon  the  occupier  or  appropriator  of  the  soil; 
and  as  such,  has  none  of  the  characteristics  of  mere  personalty." 
The  court  held  that  a  justice  of  the  peace  has  no  jurisdiction 
over  an  action  for  diversion  of  water  because  it  was  an  action 
concerning  title  to  real  estate.13  The  statute  of  frauds,  con- 
cerning conveyances  of  real  estate,  applies  to  it,  and  transfers 
must  be  by  deed.14  The  statute  of  limitations  concerning  land 
applies  to  it.15  So  do  the  recording  statutes,  as  between  suc- 
cessive conveyances.16  The  right  to  have  water  flow  from  a 
river  into  a  ditch  is  real  property.17  A  wrongful  diversion  of 
water  is  an  injury  to  real  property.18  The  right  to  take  water 
from  a  river  and  conduct  it  to  a  tract  of  land  is  realty.19  The 
right  to  have  water  flow  through  a  pipe  from  a  reservoir  to  and 
upon  a  tract  of  land  is  an  appurtenance  to  the  land.20  An 
undivided  interest  in  a  ditch  and  in  the  right  to  water  flowing 
therein  is  real  property.21  And  where  one  person  has  a  right 
to  the  flow  of  water  and  another  has  the  right  to  have  a  part 

man,  8  Idaho,  272,  68  Pac.  19.     But  743;   Dorris  v.  Sullivan,  90  Cal.  279, 

a   mere   permit    from   the     State   En-  27  Pac.  216;   Hayes  v.  Fine,  91  Cal. 

gineer  is  not  real  property.     Speer  v.  391,   27  Pac.   772;   Bates  v.  Hall,  44 

Stephenson  (1909),  16  Idaho,  707,  102  Colo.  360,  98  Pac.  3.     See  infra,  see. 

Pac.  365.  555  et  seq.,  parol  sale. 

Montana. — Hale  v.  Jefferson  County,  15  Yankee    Jim    etc.    Co.    v.    Crary, 

39  Mont.  137,  101  Pac.  973   (but  see  25  Cal.  504,  85  Am.  Dec.  145,  1  Morr. 

Helena  W.  W.  Co.  v.  Settles,  37  Mont.  Min.  Rep.  196,  and  see  infra,  sec.  579 

237,  95  Pac.  838).  et  seq. 

Nevada. — Rickey    L.    &    C.    Co.    v.  16  Partridge  v.   McKinney,   10  Cal. 

Miller  &  Lux,  152  Fed.  14,  81  C.  C.  181,  1   Morr.  Min.  Rep.  185;  Lyles  v. 

A.  207.  Pen-in,    119    Cal.    264,    51    Pac.    332. 

Utah. — Conant   v.   Deep   Creek   Co.,  Infra,  sec.  542. 

23  Utah,   627,   90  Am.   St.  Rep.   721,  "  Lower  Kings  River  W.  D.  Co.  v. 

66  Pac.  188.  Kings  River  &  F.  C.  Co.,  60  Cal.  410. 

12  5  Cal.  445,  63    Am.  Dec.  140,  4  18  Last    Chance    etc.     Co.    v.    Emi- 
Morr.    Min.    Rep.    513.  grant  D.  Co.,  129  Cal.    278,  61  Pac. 

13  A  somewhat  similar  decision  ap-  960. 

pears  in  Pacific  etc.  Club  v.  Sausalito  19  South  Tule  etc.  Co.  v.  King,  144 

etc.  Co.,  98  Cal.  487,  33  Pac.  322.  Cal.  454,  77  Pac.  1032. 

14  Griseza  v.   Terwilliger,  144    Cal.  20  Standard   v.   Round   Valley    Co., 
456,  77  Pac.  1034;   Smith  v.  O'Hara,  77  Cal.  403,  19  Pac.  689. 

43  Cal.  371,  1  Morr.  Min.  Rep.  671;  21  Hayes  v.  Fine,  91    Cal.  398,  27 

Oneto  v.  Restano,  78  Cal.  374,  20  Pac.      Pac.  772. 


300  (3d  ed.)     Pt.  III.     THE  LAW  OF  PEIOE  APPROPRIATION.       §  284 

of  such  water  flow  to  his  land  for  its  irrigation,  the  right  of 
the  latter  is  real  property.22  Ditches  and  water-rights  may  be 
sold  on  execution  as  real  property.23  An  action  to  quiet  title 
as  for  real  property  is  proper.24  And  an  action  to  settle  rights 
is  one  to  quiet  title  to  realty.25  In  Idaho  water-rights  are 
declared  real  estate  by  statute.1  As  it  is  real  property,  an  action 
to  quiet  title  thereto  cannot  be  brought  by  an  administrator.2 
It  may  be  acquired  by  descent,  as  real  property.3  It  is  a  vested 
right,  protected  by  the  constitution,4  and  capable  of  estimation 
in  money.5 

That  the  usufructuary  right  to  the  flow  and  use  of  a  natural 
stream  by  appropriation  is  real  property  is  fully  recognized.6 

A  permit  from  the  State  Engineer  to  make  an  appropriation 
is  not,  however,  real  property,  not  being  an  appropriation,  but 
only  a  consent  to  acquire  one.7 

The  corpus  of  water,  as  distinguished  from  its  usufruct  in  the 
natural  resource,  is  not  real  property.8 

(3d  ed.) 

§  284.  Same — Taxation. — For  convenience,  we  state  here 
some  matters  regarding  taxation  of  ditches  and  water-rights. 

Water-rights  are  real  estate  for  the  purposes  of  taxation,9  but 
should  not  be  assessed  separately  from  the  lands  to  which  (if 

22  Dorris  v.   Sullivan,   90  Cal.   286,  4  Town  of  Sterling  v.  Pawnee  etc. 
27  Pac.  216;  Farmers'  etc.  Co.  v.  New  Co.,  42  Colo.  421,  94  Pac.  339,  15  L. 
Hampshire  etc.   Co.    (1907),   40   Colo.  R.  A.,  N.  S.,  238.     See,  also,  Lamar 
467,   92   Pac.  290.     See,   also,   Stanis-  '  etc.   Co..  v.   County  etc.  Co.,  26   Colo, 
laus  Water  Co.  v.   Bachman     (1908),  370,   77    Am.    St.   Rep.    261,    58   Pac. 
152  Cal.  716,  93   Pac.   858,   15  L.  R.  600;  Mohl  v.  Lamar   etc.  Co.  (Colo.), 
A.,  N.  S.,  359.  128     Fed.     776;     Knowles     v.     New 

23  Gleason   v.   Hill,    65    Cal.    18,   2  Sweden  Irr.  Dist.,  16  Idaho,  217,  101 
pac    413  Pac.   81;    Miller  v.   Wheeler     (1909), 

„','.,           „           ,,     ,  ,   .      oo  54  Wash.  429,  103  Pac.  641,  23  L.  R. 

n  i    ^n7«pC>     i°n™  Montdair'  32  A.,    N.    S.,    1065;    Montpelier   Co.   v. 

Colo.  420,  76  Pac.  1050.  Montpelier'    (Idaho,    1911),    113    Pac. 

25  Taylor  v.  Hulett,  15  Idaho,  265,  74L 

97  Pac.  37,  19  L.  R.  A.,  N.  S.,  535.  s'waha-Lewiston  etc.  Co.  v.  Lewis- 

1  Idaho  Rev.  Stats.  1887,  sec.  2825;  ton  Co.  (Idaho),  158  Fed.  137. 
Boise   etc.   Co.  v.   Stewart,   10   Idaho,  6  As  to  when  the  corpus  of  water 
38,  77  Pac.  32,  321;  Ada  etc.  Co.  v.  is   personal  property,   see  supra,   sec. 
Farmers'    etc.   Co.,   5    Idaho,    793,   51  35. 

Pac.  990,  40  L.  R.  A.  485;  McGinness  7  Speer  v.   Stephenson     (1909),   16 

v.    Stanfield,    6    Idaho,    372,    55    Pac.  Idaho,   707,   102   Pac.   365. 

1020;  Hall  v.  Blackman,  8  Idaho,  272,  8  Supra,  sec.  1    et  seq.     As  to  when 

68    Pac.     19 ;    Taylor     v.   Hulett,    15  it  is  personal  property,  see  supra,  sec. 

Idaho,  265,  97  Pac.  37.  35. 

2  Travelers'  Ins.   Co.   v.   Childs,   25  9  Authorities  supra;  also   Cal.   PoL 
Colo.   360,  54   Pac.   1020.  Code,  sec.    3663;    contra,    Helena  W. 

3  Hall  v.  Blackman,  8   Idaho,  272,  Co.  v.  Settles,  37  Mont.  237,  95  Pac. 
68  Pae.  19.  838. 


§  283  Ch.  13.     ELEMENTS  OF  EIGHT.  (3d  ed.)  301 

any)  they  are  appurtenant.10  In  California,  the  Political  Code 
provides:11  "Water  ditches  constructed  for  mining,  manufactur- 
ing or  irrigation  purposes,  and  wagon  and  turnpike  toll  roads 
must  be  assessed  the  same  as  real  estate  by  the  assessor  of  the 
county,  at  a  rate  per  mile  for  that  portion  of  such  property  as 
lies  within  his  county. ' ' 12  Water  actually  reduced  to  possession 
and  contained  in  waterworks  may  be  taxed  as  personalty,13  but 
not  so  the  water-right  in  the  stream  as  distinguished  from  the 
corpus  of  the  water.14 

Irrigation  works  are  exempt  from  taxation  in  some  States.15 
Under  the  Idaho  and  Colorado  exemption  it  is  held  that  ' '  In  order 
to  have  shown  that  this  ditch  was  exempt,  it  was  necessary  to 
show  that  the  waters  thereof  were  used  exclusively  upon  the  lands 
owned  by  the  owner  of  the  ditch,  or  to  have  shown  that,  in  fact, 
the  ditch  and  right  of  way  had  never  been  assessed. ' ' 16 

Wells  have  been  held  taxable  as  real  estate.17 

(3d  ed.) 

§  285.    A  Freehold. — A  water-right  by  appropriation  is  not 

only  real  estate,  but  has  all  the  dignity  of  and  is  an  estate  of 
fee  simple,  or  a  freehold.  It  was  not  always  accepted  as  such 
in  the  early  days,  however.  This  historical  denial  that  the 
estate  was  a  freehold  we  have  already  traced  at  much  length  in 
the  historical  chapters;  how,  before  the  act  of  Congress  of  1866, 
it  was.  strenuously  urged  that  the  appropriators  had  no  right  at 

10  Hale  v.  Jefferson  County  (1909),  1908,   sees.    5545,   5546.     See   Empire 
39    Mont.    137,    101   Pac.   973;     Colo.  etc.    Co.   v.   Rio   Grande   etc.   Co.,   21 
Const.,   art.   10,  sec.   3.     See.  Hart  v.  Colo.    249,   40   Pac.    449 ;     Murray   v. 
Plum,  14  Cal.  148,  taxation  of  flume.  Montrose    County,    28     Colo.    430,    65 

11  Sec.  3663.  Pac.   26. 

12  See,    also,    infra,    sec.    590,    ad-  Idaho. — Laws   1899,   p.    221;     Rev. 
verse    use.     As   to    place    of   taxation  Stats.  1887,  sec.  4043.     See  Swank  v. 
of  water-rights,  see  22  Harvard  Law  Sweetwater    Co.,    15    Idaho,     353,    98 
Review,  233,  note;   Miller    v.  Madera  Pac.  297. 

etc.    Co.,    155   Cal.    59,   99   Pac.   502,  Nebraska.— Laws    1895,    c.    69,    p. 

22  L.  R.  A.,  N.  S.,  391.  266,  sec.    61;    Cobbey's    Ann.  Stats., 

is  Irrigation  Co.   v.  Ogden  City,  8  sec.  6815. 

Utah,  494,  33  Pac.  135.  New  M exico.-  -Stats.   1905,  p.   270, 

i-t  Supra,  c.  2.     But  in  Helena  W.  sec.  8. 

W.   Co.  v.   Settles,   37   Mont.   237,   95  Utah.— Const.,  art.  13,  sec.  3. 

Pac.    838,    the  water-right    was    also  This  list  is  probably  not  complete, 

held  taxable  as  personalty  under  Mon-  16  gwank  y   gweetwater  etc   c       15 

tana     statutes.     The     decision,     aside  Idah       353     9g    pa(J     297>      Coloradc 

from    any    special    statute,  would  be  c&ses   ^^^ 
against  authority  and  principle. 

15  Arizona. — Stats.   1907,  p.   170.  i7  California    etc.    W.    Co.    v.     Los 

Colorado. — To     some     extent.     See  Angeles    (1909),    10    Cal.    App.    185, 

Const.,    art.    10,    sec.    3;    Rev.    Stats.  101  Pac.  547. 


302  (3d  ed.)     Pt.  III.     THE  LAW  OF  PEIOK  APPEOPEIATION.       §  2SG 

all,  but  were  trespassers  on  the  public  lands,  the  United  States 
being  the  real  owner  of  the  right  to  the  water;  how  the  right 
hence  took  on  many  features  of  a  possessory  character ; 18  how  the 
early  cases  nevertheless  gave  to  the  rights  of  the  pioneers  all  the 
recognition  and  force  of  freehold  estates ; 19  and  how  Congress 
ratified  this  by  the  act  of  1866.20  All  doubts  were  put  at  rest 
by  that  act;  and  ever  since  all  the  freehold  remedies  are  allowed 
the  appropriators  in  the  courts,  and  *heir  rights  have  ever  since 
had  all  the  attributes  of  freehold  realty.  As  said  in  a  very  late 
case:  "The  first  appropriator,  to  the  extent  of  his  appropriation 
when  completed  and  established,  is  the  owner  as  against  all  the 
world."2* 

(3d  ed.) 

§  286.  Conditional. — Although  a  freehold,  the  right  is  con- 
ditional, in  the  nature  of  a  determinable  fee;  a  feature  in  common 
with  other  rights  which  have  grown  out  of  the  possessory  system 
on  the  public  domain,  such  as  mining  claims  before  patent.  As 
to  the  possessory  rights  on  public  land  generally,  it  was  said: 
"Our  courts  have  given  them  the  recognition  of  legal  estates  of 
freehold,  and  so,  to  all  practical  purposes — if  we  except  some 
doctrine  of  abandonment,  not,  perhaps,  applicable  to  such  estates — 
unquestionably  they  are."22  Though  to-day  elevated  to  the 
dignity  of  real  estate,  water-rights  of  appropriation  still  retain 
the  impress  of  their  origin,  and  were  (and  frequently  are)  called 

18  Supra,  sec.  139.  appropriation,   as    though    the    estate 

There    was   some   early    contention  were  still  the  mere  possessory  one  of  a 

that  this   mere   possessory  estate,   be-  trespasser,    and    not    a    fee.     (Infra, 

ing  without  actual  title  to  the  realty  sec.  555  et  seq.) 

itself   (which  belonged  to  the  United  i»  Supra,  see.   89    et  seq.     See  es- 

States)  was  in  fact  personalty.     There  pecially  Merritt  v.  Jucld,  14.  Cal.  64, 

was    much    contention   that,   as    per-  6  Morr.  Min.  Rep.  62. 

sonalty,   a   justice   of   the   peace   had  20  Supra,  sec.   92   et  seq. 

jurisdiction    over    actions     concerning  21  Sowards  v.  Meagher  (Utah),  108 

mining  claims  (Yale  on  Mining  Claims  Pac.  1113. 

and    Water    Rights,    page    115)  ;    but  In  the  opinions  of  Mr.  Justice  Shaw, 

this  was  finally  given  up  (Ibid.)  ;  and  in  California  appropriations  are  some- 

as   to   water-rights   it   was   denied   as  times  still  said  to  be  mere  possessory 

early    as     Hill     v.     Newman,    quoted  rights  and  not  freehold;   but  only  in 

supra,  sec.  283,  saying  that  a  water-  one    case    was    this    attempted    to    be 

right  was  not  personalty  because  the  applied  in  actual  decision,  and  refer- 

policy  of  the  law  treated  it  as  a  free-  ence  is  made  to  a   preceding  chapter 

hold.     Note,   however,   a   curious   sur-  where  that  case    (Duckworth  v.  Wat- 

vival   in   some   rulings   that   the   stat-  sonville    Co.,    150    Cal.    520,    89    Pac. 

ute  of  frauds   does  not   (in  some  re-  3381)    is  discussed.     Siqn-a,  sec    246. 

spects)     apply;     that    a     parol     sale  --  Merritt   v.   Judd,   14   Cal.   64,   6 

operates   as   an   abandonment   of   the  Morr.  Min.  i?ep.  62 


§  287  Ch.  13.     ELEMENTS  OF  RIGHT.  (3d  ed.)  303 

a  privilege,  license  or  franchise23  (under  the  "California"  theory 
by  grant  from  the  United  States  as  proprietor  of  the  public 
lands;  under  the  Colorado  or  Wyoming  theory,  by  permit  from 
the  State)  ;  subject  to  the  conditions  of  the  local  law  (in  the  early 
California  days,  of  the  customs  of  miners)  which  insist  upon 
forfeiture  or  abandonment  upon  failure  to  make  beneficial  use. 
And  some  recent  Water  Codes  name  the  final  certificate  issued 
to  the  appropriator  a  "license."24  This  franchise,  privilege  or 
license  is  conditioned  on  beneficial  use  of  the  water;  a  failure  of 
this  condition  causes  a  loss  of  the  right.25 

The  conditions  had  their  origin  in  the  customs  of  the  California 
miners,  but  custom  has  long  been  superseded  by  decision  and 
statute;  and  custom  has  no  more  bearing  in  this  subject  to-day 
than  in  the  general  law  of  real  estate.1 

(3d  ed.) 

§  287.  An  Incorporeal  Hereditament. — A  water-right  by 
appropriation  is  not  within  the  term  "land."2  It  is  not  sub- 
ordinate to  any  land,  but  independent  thereof  and  of  equal 
dignity  therewith,  and  hence  not  an  easement.3  Often  it  is  called 
an  easement,4  but  it  is  submitted  that  such  is  not  the  better  view.5 
Being  but  a  usufruct,  or  privilege  of  flow  and  use,  it  is  incor- 
poreal.6 It  is  held  to  be  incorporeal  in  Swift  v.  Goodrich,7 
deciding  consequently  that  contracts  concerning  water-rights 

23  E.  g..  Conger  v.  Weaver,  6  Cal.          3  Yale     on     Mining     Claims     and 
548,  558,   65   Am.   Dee.   528,   1   Morr.       Water    Eights,    204,    215;    and    cases 
Min.   Eep.   594;    Mitchell   v.   Amador       cited  infra,  sec.  456. 

Canal  etc.   Co.,   75   Cal.   464,   483,   17  *  E.  g.,  Smith  v.  Hawkins,  110  Cal. 

Pac.   246;   Natoma  etc.  Water  Co.  v.  122,  42   Pac.   453;    Smith  v.   Denniff, 

Hancock,    101   Cal.   42,   31   Pac.    112,  24  Mont.  20,  81  Am.  St.  Rep.  408,  60 

35  Pac.  334.  Pac.  398,  50  L.  R.  A.  741;   Cal.  Civ. 

24  Infra,  sec.  420.  Code,  801. 

25  Infra,  sees.  478,  567  et  seq.  5  See,  also,  Lux  v.  Haggin,  69  Cal. 

1  See,   however,   as    to   the   rule   in       255,   293,   10  Pac.   674.     A  perpetual 
Oregon,      Washington      and      Alaska,       water-right  is  not  a  "lien  and  encum- 
infra,  sees.  635,  1430.  brance."     Nampa    Irr.   Dist.   v.   Gess, 

The  same  is,  to  a  considerable  ex-  17  Idaho,  552,  106  Pac.  993. 
tent,   true   in   the   mining  law,   where          6  In  Hill  v.  Newman,  5  Cal.  445,  63 

miners'    customs    and   regulations   are  Am.  Dec.  140,  4  Morr.  Min.  Rep.  513, 

now  almost  wholly  superseded  by  stat-.  quoted   in   a   preceding   section,   it   is 

ute   and   decision.     Costigan   on   Min-  railed  a  corporeal  hereditament.     See 

ing  Law,  pp.  23,  24.  Yale   on   Mining   Claims   and    Water 

2  Mt.    Carmel    Fruit    Co.    v.    Web-  Rights,  pp.  204,  215;   Helena  W.  Co. 
ster,  140  Cal.  183,  73  Pac.  826;  Helena  v.  Settles  etc.' Co.,  37  Mont.  237,  95 
W.  Co.  v.  Settles  etc.  Co.,  37  Mont.  Pac.  838. 

£37,  95  Pac.  838.  7  70  Cal.  103,  11  Pac.  561. 


304  (3ded.)    Pt.  III.    THE  LAW  OF  PEIOE  APPROPRIATION.    §§288,289 

cannot  create  the  relation  of  landlord  and  tenant,  as,  being  incor- 
poreal, no  tenancy  can  exist  therein.8 

(3d  ed.) 

§  288.     Definition. — From  these  characteristics,    the    following 

definition,  it  is  suggested,  may  be  deduced : 

A  water-right  of  appropriation  is  real  estate,  independent  of 
the  ditch  for  carrying  the  water,  and  independent  of  ownership 
or  possession  of  any  land  and  independent  of  place  of  use  or 
mode  of  enjoyment,  whereby  the  appropriator  is  granted  by  the 
government  the  exclusive  use  of  the  water  anywhere  so  long  as 
he  applies  it  to  any  beneficial  purpose;  and  it  is  an  incorporeal 
hereditament,  solely  usufructuary,  not  conferring  ownership  in 
the  corpus  of  the  water  or  in  the  channel  of  .the  stream. 

This  definition,  being  made  by  consolidating  the  elements 
already  separately  considered,  is  in  each  element  supported  by 
the  authorities.9 

(3d  ed.) 

§  289.  Same. — There  is,  however,  some  confusion  in  the  use 
of  the  word  "appropriation."  This  confusion  occurs  in  statutes 
and  decisions.  There  are  at  least  eight  different  ways  in  which 
the  word  "appropriation"  has  been  used  in  the  law  of  waters. 
These  are  as  follows: 

(1)  A  diversion  on  public  land  of  a  stream  flowing  wholly 
over  public  land,  and,  because  a  grant  from  the  United  States, 
constituting  a  freehold  indefeasible  usufructuary  estate  in  the 
natural  resource,  good  against  riparian  owners  subsequently 
acquiring  land,  and  good  against  the  .world.  This  is  the  only 

8  Was  called  incorporeal  in  Rickey  Other    definitions   are    given    infra, 

etc.  Co.  v.  Miller,  152  Fed.  14,  81  C.  sec.  370,  of  which  the  following  is  an 

C.   A.   207;    Frank  v.   Hicks,  4  Wyo.  example:   "It  has  been  repeatedly  de- 

502,   35    Pac.    475,   481,    1025.     See,  cided  in  this  jurisdiction  that  an  'ap- 

also,    Gutheil    etc.    Co.    v.    Montclair,  propriation'  consists  of  an  actual  di- 

32  Colo.  420,  76  Pac.  1050,  holding  it  version     of     water     from    a     natural 

unnecessary    in    the    case    to     decide  stream,  followed  within  a    reasonable 

whether  corporeal  or  incorporeal.  time     thereafter    by    an     application 

n  „  ...          ,.  ,  thereof     to'    some     beneficial     use." 

»  Another   definition   which   we   de-  Windsor  B    Co-  v>  Lake   g       j     Co 

duced  elsewhere  (supra,  sec.  19)  is:  A  44  Colo  2U  98  Pac  729.  "Appro- 
water-right  1S  a  usufruct  in  a  stream,  iation  is  th'e  intent  to  tak  a££m. 
consisting  in  the  right  to  have  the  ied  ,  SQme  physical  demon- 

Avater  flow  so  that  some  portion  of  it  g^,  Jof  the  ^tent^  £nd  for  some 

(which  portion  the  law  limits  in  var-  wluable   use/,     Larimer  Co.  Res.  Co. 

lous   ways)    may   be   reduced   to    pos-  v    Peo  le    8  Colo.  616    9  Pac>  794. 
session  and  be  made  the  private  prop-  FoJ.  £  statutorv  definition  in  Wyom- 

erty  of  an  individual."  ^      see  inf       /e 


§  289  Ch.  13.     ELEMENTS  OF  EIGHT.  (3d  ed.)  305 

proper  sense  in  which  the  word  can  be  (and  usually  is)  used 
under  the  California  doctrine.  Properly  speaking,  the  word 
"appropriation,"  as  already  set  forth,  denotes  a  freehold  estate, 
or,  as  the  California  court  has  frequently  said,  "The  term 
'appropriation'  as  applied  to  the  acquirement  of  the  right  to  the 
use  of  water  has  in  this  State  a  statutory  technical  meaning,"10 
and  is  confined  to  rights  obtained  on  the  public  domain. 

(2)  As  denoting  a  diversion  of  waters  flowing  on  either  public 
or  private  land  under  the  Colorado  doctrine. 

(3)  As  denoting  in  California  wrongful  possessions  by  disseisin, 
the  possession  of  one  mere  trespasser  or  "disseisor"  in  respect  to 
water  on  private  land  against  another  mere  trespasser,  both  sub- 
ject to  the  paramount  right  of  riparian  owners   (the  disseisees) 
who  have  not  yet  objected  to  either — a  possession  defeasible  in 
toto  by  riparian  owners  at  any  time  before  prescription  has  arisen, 
and  not  a  freehold.     This  is  a  revival  of  the  idea  that  an  appro- 
priation is  but  a  possessory  right  against  other  mere  possessors 
and  not  a  freehold.11     However,  from  an  early  period  in  the  law, 
possessory  rights  on  the  public  domain  were  regarded  as  freehold 
titles,   and  only   such  freehold  estates   acquired   on   public  land 
are,  as  in  the  first  use  of  the  word  above,  properly  called  "appro- 
priations" in  California.12 

(4)  As,    in    California,   denoting    (possibly)    surplus   diversion 
over  all  possible  present  or  future  needs  of  an  individual  exist- 

10  Alta  etc.  Co.  v.  Hancock,  85  Cal.  ground  basin    (see  infra,  sees.   1106, 
219,   20   Am.   St.   Eep.   217,   24  Pac.  1158),  are  spoken  of  in   the  court's 
645;  Merrill  v.  Southside  Irr.  Co.,  112  opinion  as  "appropriators  for  use  on 
Cal.  433,  44  Pac.  720.  distant  lands,"  although  the  court  ex- 

11  The   possession   of   adverse   tres-  pressly     declares    in     the     Katz     case 
passers   between   themselves   has   been  (page  135),  "There  is  no  statute  on 
called     an     "appropriation,"     though  this    subject,    as     there     now   is   con- 
neither    party    has .  an    estate    in    fee  cerning     appropriations     of.    surface 
in  the  waters.     Duckworth  v.  Watson-  streams,"   and    in   the    Burr  case   ex- 
ville   etc.   Co.,   150   Cal.   520,   89   Pac.  pressly  decides  that  this  kind   of  an 
338,    speaking    of    "common-law     ap-  "appropriation"   is   only  a   temporary 
propriation,"    meaning    to     designate  one,   terminable   at   the   suit   of     any 
such  a    possessory    right  by   disseisin.  neighboring  landowner  who  wants  the 
See  supra,  sec.  246.  water  for  use  on   his  own   land,   and 

12  In  Katz  v.  Walkinshaw,  141  Cal.  against   whom,   to    the   extent   of   his 
116,  99  Am.  St.  Eep.  35,  70  Pac.  663,  capacity  of  use,  this  kind  of  "appro- 
74  Pac.  766,  64  L.  E.  A.  236,  and  Burr  priation"  is  no  appropriation  at  all  in 
v.  Maclay  Eancho  etc.  Co.  (1908),  154  the  sense  of  permanent  right.     Infra, 
Cal.   428,   98   Pac.   260,   the  users   of  sec.  1156  et  seq.     See,  also,  Hudson  v. 
underground    water,   in   the   one    case  Dailey  (1909),  156  Cal.  617,  105  Pac. 
coming  from  artesian  wells  and  in  the  748. 

other    case    pumped    from   an   under- 
Water  Bights — 20 


306  (3d  ed.)     Pt.  III.     THE  LAW  OF  PRIOR  APPROPRIATION.       §  289 

ing  plaintiff  riparian  owner.13  This  also  is  not  a  positive  right, 
being  defeasible  by  some  other  riparian  owner  who  can  show 
that  he  may  possibly  be  damaged  (though  the  present  plaintiff 
cannot  so  show)  ;  and  certainly  defeasible  by  a  sufficient  number 
of  riparian  owners  joining  against  it.  It  is  in  no  true  sense  an 
"appropriation." 

(5)  As  applied  to  the  corpus  of  the  water  instead  of  its  usufruct, 
as  where  one  dips  a  bucket  in  the  stream  he  is  sometimes  said  to 
"appropriate"  that  individual  bucketful.14 

(6)  As  denoting  a  right  acquired  on  eminent  domain  by  forced 
purchase,  making  compensation. 

(7)  Under  the  California  constitution,  water  "appropriated" 
for  distribution  means  water  applied  or  devoted  thereto,  however 
acquired.15 

(8)  As  denoting  the  first  step  in  acquiring  a  right.     "Appro- 
priation is  a  much-abused  word.     It  is  often  loosely  spoken  of  as 
the  preliminary  step — such  as  filing  a  notice,  making  a  claim  to 
the  water  or  the  like,"16  which  is  a  wholly  improper  use  of  the 
word.17 

It  is  hence  not  surprising  that  confusion  has  occurred  in  the 
law.18 

§§  290-298.     (Blank  numbers.) 

18  Infra,  sec.  822  et  seq.  2   Cal.  App.   186,  83   Pac.   267.     See 

14  Supra,  sec.  30  et  seq.  infra,  sees.  1264,  1265. 

15  The    constitution    of    California,          16  Morris    v.    Bean     (Mont.),   146 
article    14,    section  1,    declares    that  Fed.  425. 

"the   use    of   all    waters   now    appro-  i7  Infra,  sec.  376.     See,  also,  Speor 

priated,  or  that 'may  hereafter  be  ap-  v.     Stephenson,     16     Idaho,    707,    102 

propriated    for     sale,    rental,    or    dis-  Pac.  365,  as  to  a  "permit." 
tribution,  is  hereby  declared  to  be  a  18  Because  of  this  confusion  there 

public      use."      The      word      "appro-  is  some  tendency  in  very  recent  Cali- 

priated"    here    means     "applied,"    or  fornia   cases  to   drop   the  word   "ap- 

"devoted,"  and  does    not  connote  any  propriation"    and    speak    instead    of 

special  method  or  kind  of  acquisition.  "paramount  right"  to  indicate,  against 

Merrill  v.  Southside  Irr.  Co.,  112  Cal.  riparian  owners,  rights  by  grant,  con- 

426,  44  Pac.  720;  Hildreth  v.  Monte-  demnation  or  prescription  and  public 

cito  Co.,  139  Cal.   29,  72  Pac.    395;  land  appropriations. 
Mahoney  v.  American  Land  etc.  Co., 


§  299  Ch.  14.    SENIOR  AND  JUNIOE  EIGHTS.         (3d  ed.)  307 


CHAPTER  14. 
RELATION  BETWEEN  APPROPRIATORS. 

A.  SENIOR  RIGHTS. 
§  299.     Priority  governs. 

§  300.     Whole  stream. 

§  301.     In  times  of  deficiency. 

B.  JUNIOR  RIGHTS. 
§  302.     Successive  appropriation. 

§  303.  Same. 

§  304.  Same. 

§  305.  Periodical  appropriations. 

§  306.  Temporary  appropriations. 

§  307.  No  partiality. 

§  308.  Preferences. 

§  309.  Pro-rating. 

C.     CORRELATIVE  RIGHTS  BETWEEN  APPROPRIATORS. 

§  310.  The  principle  of  "unreasonable  priority." 

§  311.  Some  early  rulings. 

§  312.  The  dictum  in  Basey  v.  Gallagher. 

§  313.  Recent  tendencies. 

§  314.  Same. 

§  315.  Conclusions. 

§§  316-317.     (Blank  numbers.) 

A.     SENIOR  RIGHTS. 
(3d  ed.) 
§  299.     Priority  Governs. — Under  the  theory  upon  which  the 

law  of  appropriation  arose,  and  what  is  still  the  theory  of  the 
California  doctrine,  several  appropriators  on  the  same  stream  upon 
public  land  (to  which  alone  does  the  doctrine  of  appropriation 
>  apply  in  California)  bear  to  each  other  the  relation  of  successive 
grantees  of  parcels  of  one  original  holding,  namely,  of  the  sole 
right  to  the  waters  held  by  the  United  States  as  original  owner. 
Like  successive  grants  between  private  parties,  where  they  con- 
flict, the  later  one  can  hold  only  what  was  left  after  the  earlier 
one  was  made.  The  maxim,  "Qui  prior  est  in  tempore,  portior  est 
in  jure,"  is  continually  quoted  in  the  early  cases  upon  this  sub- 
ject as  governing;  a  maxim  drawn  from  the  law  of  successive 


308  (3d  ed.)     Pt.  III.     THE  LAW  OF  PRIOR  APPROPRIATION.       §  299 


grants  of  real  estate  between  private  parties  who  took  from  the 
same  owner  subject  to  the  possession  of  a  prior  grantee.1 

Under  the  theory  of  the  Colorado  doctrine,  priority  governs 
because  the  waters  are, piibUci  juris,  and  the  possession  and  use 
of  the  first  taker,  whether  on  public  or  private  land,  gives  a 
good  title  thereto  against  later  comers  on  the  principle  that  prior 
possession  and  use  thereof  is  the  only  source  of  title.  That  priority 
gives  the  better  right  sometimes  appears  in  the  constitutions  of 
the  arid  States. 

Water-rights  by  appropriation  are  frequently  spoken  of  as 
"priorities."  That  priority  governs  is  a  fundamental  principle 
of  the  law  of  appropriation.2 

A  simple  illustration  of  the  doctrine  of  priority  is  the  following : 
A  settler  living  on  unsurveyed  public  land  at  a  spring  used 


1  In  Lux  v.  Haggin  the  court  says: 
"Recognizing  the  United  States  as  the 
owner  of   the   lands   and  waters,   and 
as  therefore  authorized  to  permit  the. 
occupation  or  diversion  of  the  waters 
as  distinct  from  the  lands,  the  State 
courts   have  treated  the  prior   appro- 
priator  of  water  on  the  public  lands 
of   the    United    States    as  having   a 
better  right  than  a  subsequent  appro- 
priator,   on   the   theory   that   the    ap- 
propriation   was    allowed    or    licensed 
by  the  United  States."    Lux  v.  Haggin, 
69  Cal.  255,  at  339,  10  Pac.  674. 

2  Alaska. — (For     mining)    Revenue 
etc.  Co.  v.  Balderston,  2  Alaska,  363. 

California. — Irwin  v.  Phillips,  5 
Cal.  140,  63  Am.  Dec.  113,  15  Morr. 
Min.  Rep.  178;  Conger  v.  Weaver,  6 
Cal.  548,  65  Am.  Dec.  528,  1  Morr. 
Min.  Rep.  594;  Kelley  v.  Natoma  W. 
Co.,  6  Cal.  106,  1  Morr.  Min.  Rep. 
592;  Tenney  v.  Miners'  Ditch  Co.,  7 
Cal.  335,  11  Morr.  Min.  Rep.  31; 
Thompson  v.  Lee,  8  Cal.  275,  1  Morr. 
Min.  Rep.  610;  Marius  v.  Bicknell, 
10  Cal.  217;  Butte  etc.  Ditch  Co.  v. 
Vaughn,  11  Cal.  143,  70  Am.  Dec.  769, 
4  Morr.  Min.  Rep.  552;  Kimball  v. 
Gearhart,  12  Cal.  27,  1  Morr.  Min. 
Rep.  615;  Ortman  v.  Dixon,  13  Cal. 
33;  McDonald  v.  Bear  River  Co.,  13 
Cal.  220,  1  Morr.  Min.  Rep.  626;  Es- 
mond v.  Chew,  15  Cal.  137,  5  Morr. 
Min.  Rep.  175;  Kidd  v.  Laird,  15  Cal. 
161,  76  Am.  Dec.  472,  4  Morr.  Min. 
Rep.  571 ;  Logan  v.  Driscoll,  19  Cal. 
623,  81  Am.  Dec.  90,  6  Morr.  Min. 
Rep.  172;  McKinney  v.  Smith,  21  Cal. 


374,  1  Morr.  Min.  Rep.  150;  Phoenix 
Water  Co.  v.  Fletcher,  23  Cal.  481,  15 
Morr.  Min.  Rep.  185;  Weaver  v.  Lake 
Co.,  15  Cal.  274,  1  Morr.  Min.  Rep. 
642;  Hill  v.  Smith,  27  Cal.  476,  4  Morr. 
Min.  Rep.  597;  Davis  v.  Gale,  32  Cal. 
26,  91  Am.  Dec.  554,  4  Morr.  Min.  Rep. 
604;  Nevada  Water  Co.  v.  Powell, 
34  Cal.  109,  91  Am.  Dec.  685,  4  Morr. 
Min.  Rep.  253;  Nevada  etc.  Co.  v. 
Kidd,  37  Cal.  283;  Osgood  v.  Water 
Co.,  56  Cal.  571,  5  Morr.  Min.  Rep. 
37;  Mitchell  v.  Mining  Co.,  75  Cal. 
482,  17  Pac.  246;  Ramelli  v.  Irish, 
96  Cal.  214,  31  Pac.  41;  Barrows  v. 
Fox,  98  Cal.  63,  32  Pac.  811;  Wuteh- 
umna  etc.  Co.  v.  Pogue,  151  Cal.  105, 
90  Pac.  362;  Civ.  Code,  sec.  1414,  "As 
between  appropriators,  the  one  first  in 
time  is  first  in  right." 

Colorado. — Const.,  art.  16,  sec.  6; 
Coffin  v.  Ditch  Co.,  6  Colo.  443; 
Sieber  v.  Frink,  7  Colo.  149,  2  Pac. 
901;  Wheeler  v.  Irrigation  Co.,  10 
Colo.  583,  3  Am.  St.  Rep.  603,  17 
Pae.  487;  Hammond  v.  Rose,  11  Colo. 

524,  7  Am.  St.  Rep.  258,  19  Pac.  466; 
Farmers'  etc.  Reservoir  Co.  v.   South- 
worth,  13  Colo.  Ill,  21  Pac.  1028,  4 
L.   R.   A.    767;    Platte   Water   Co.    v. 
Northern   Colorado   Irr.   Co.,   12   Colo. 

525,  21  Pac.  711;  Combs  v.  Ditch  Co., 
17  Colo.  146,  31  Am.  St.  Rep.  275,  28 
Pac.  966;  Saint  v.  Guerrerio,  17  Colo. 
448,    31   Am.    St.   Rep.    320,    30    Pac. 
335;  Thomas  v.  Guiraud,  6  Colo.  530; 
Armstrong  v.  Larimer  etc.  Co.,  1  Colo. 
App.    49,    27    Pac.    235;    Strickler    v. 
City  of  Colorado  Springs,  16  Colo.  61, 


299 


Ch.  14.     SENIOR  AND  JUNIOR  RIGHTS.          (3d  ed.)   309 


the  spring  for  culinary  purposes  and  watering  a  saddle-horse, 
though  having  no  right  or  title  in  the  land  he  occupied  (unsur- 
veyed  public  land).  Sheep  and  cattle  men  from  time  to  time 
watered  at  the  spring,  and  after  the  settler's  death  one  of  them 
set  up  an  appropriation  against  the  settler's  administrator.  It 
was  held  the  settler  had  a  better  right  (which  would  pass  to  the 
administrator)  to  the  extent  of  use  for  culinary  purposes  and 


25  Am.  St.  Rep.  245,  26  Pac.  313;  Ft. 
Morgan  Co.  v.  So.  Platte  D.  Co.,  18 
Colo.  1,  36  Am.  St.  Rep.  259,  30  Pac. 
1032;  Bloom  v.  West,  3  Colo.  App. 
212,  32  Pac.  846;  Colorado  Mill  etc. 
Co.  v.  Larimer  Irr.  Co.,  26  Colo.  47, 
56  Pac.  185;  Cache  La  Poudre  Co.  v. 
Water  Sup.  Co.,  27  Colo.  532,  62  Pac. 
420;  Fulton  etc.  Co.  v.  Meadow  etc. 
Co.,  35  Colo.  588,  86  Pac.  748;  Baer 
etc.  Co.  v.  Wilson,  38  Colo.  101,  88 
Pac.  265;  Const., 'art.  16,  sec.  6. 

Idaho. — Malad  Val.  Irr.  Co.  v. 
Campbell,  2  Idaho,  378  (411),  18  Pac. 
52;  Kirk  v.  Bartholomew,  3  Idaho, 
367,  29  Pac.  40;  Conant  v.  Jones,  3 
Idaho,  606,  32  Pac.  250;  Krall  v. 
United  States,  79  Fed.  241,  24  C.  C. 
A.  513 ;  Dunniway  v.  Lawson,  6  Idaho, 
28,  51  Pac.  1032;  Moe  v.  Harger,  10 
Idaho,  302,  77  Pac.  645. 

Kansas. — Clark  v.  Allaman,  71  Kan. 
206,  80  Pac.  571,  70  L.  .R.  A.  971; 
Gen.  Stats.,  sec.  3501. 

Montana. — Thorp  v.  Freed,  1  Mont. 
651;  Woolman  v.  Garringer,  1  Mont. 
535,  1  Morr.  Min.  Rep.  675;  Alder 
Gulch  etc.  Co.  v.  Hayes,  6  Mont.  31, 
9  Pac.  581;  Quigley  v.  Birdseye,  11 
Mont.  439,  28  Pac.  741;  Toohey  v. 
Campbell,  24  Mont.  13,  60  Pac.  396; 
Civ.  Code,  sec.  1885. 

Nebraska. — Cobbey's  Ann.  'Stats., 
sec.  6753 ;  Laws  1889,  e.  68,  p.  504, 
sec.  7. 

Nevada. — Lobdell  v.  Simpson,  2 
Nev.  274,  99  Am.  Dec.  537;  Ophir 
Min.  Co.  v.  Carpenter,  4  Nev.  534,  97 
Am.  Dec.  550,  4  Morr.  Min.  Rep.  640; 
Proctor  v.  Jennings,  6  Nev.  83,  3  Am. 
Rep.  240,  4  Morr.  Min.  Rep.  265; 
Simpson  v.  Williams,  18  Nev.  432,  4 
Pac.  1213;  Barnes  v.  Sabron,  10  Nev. 
217,  4  Morr.  Min.  Rep.  673;  Chiato- 
vich  v.  Davis,  17  Nev.  133,  28  Pac. 
239;  R-eno  Smelting  Co.  v.  Stevenson, 
20  Nev.  269,  19  Am.  St.  Rep.  364, 
4  L.  R.  A.  60.  21  Pac.  317;  Union 
Mill  Co.  v.  Dangberg  (Nev.),  81  Fed. 


73;  Ennor  v.  Raine,  27  Nev.  178,  74 
Pac.  1;  Twaddle  v.  Winters,  29  Nev. 
88,  85  Pac.  284,  89  Pac.  289. 

New  Mexico. — Millheiser  v.  Long, 
10  N.  M.  99,  61  Pac.  Ill;  Albuquer- 
que Irr.  Co.  v.  Gutierrez,  10  N.  M. 
177,  61  Pac.  357;  S.  C.,  Gtitierres  v. 
Albuquerque  etc.  Co.,  188  U.  S.  545, 
23  Sup.  Ct,  Rep.  338,  47  L.  Ed.  588. 

Oregon. — Kaler  v.  Campbell,  13  Or. 
596,  11  Pac.  301;  Simmons  v.  Winters, 
21  Or.  35,  28  Am.  St.  Rep.  727,  27 
Pac.  7;  Speake  v.  Hamilton,  21  Or. 
3,  26  Pac.  855;  Hindman  v.  Rizor, 
21  Or.  112,  27  Pac.  13;  McCall  V. 
Porter,  42  Or.  49,  70  Pac.  820,  71 
Pac.  976;  Nevada  etc.  Co.  v.  Bennett, 
30  Or.  59,  60  Am.  St.  Rep.  777,  45 
Pac.  472;  Mann  v.  Parker,  48  Or.  321, 
86  Pac.  598;  Hough  v.  Porter,  51  Or. 
318,  95  Pac.  732,  98  Pac.  1098,  102 
Pac.  728. 

South  Dakota. — Lone  Tree  D.  Co. 
v.  Cyclone  D.  Co.,  15  S.  D.  519,  91 
N.  W.  355;  Stats.  1905,  p.  204,  sec. 
2;  Stats.  1907,  c.  180,  sec.  2. 

Utah. — Munroe  v.  Ivie,  2  Utah,  535, 
8  Morr.  Min.  Rep.  127;  Lehi  Irr.  Co. 
v.  Moyle,  4  Utah,  327,  9  Pac.  867; 
Salina  Creek  Irr.  Co.  v.  Salina  Stock 
Co.,  7  Utah,  456,  27  Pac.  578;  Hague 
Nephi  Irr.  Co.,  16  Utah,  421,  67  Am. 
St.  Rep.  634,  41  L.  R.  A.  311,  52  Pac. 
765;  Herriman  Irr.  Co.  v.  Butterfield 
M.  Co.,  19  Utah,  453,  57  Pac.  537, 
51  L.  R.  A.  930;  Salt  Lake  City  v. 
Salt  Lake  etc.  Co.,  24  Utah,  249,  67 
Pac.  672,  61  L.  R.  A.  648,  25  Utah, 
456,  71  Pac.  1069. 

Wyoming. — Const.,  art.  8,  sec.  3; 
Moyer  v.  Preston,  6  Wyo.  308,  71  Am. 
St.  Rep.  914,  44  Pac.  845;  Willey  v. 
Decker,  11  Wyo:  496,  100  Am.  St.  Rep. 
939,  73  Pac.  210. 

See,  also,  Pomeroy  on  Riparian 
Rights,  sec.  15 ;  Gould  on  Waters,  sec. 
228  et  seq. ;  Kinney  on  Irrigation,  sec. 
150  et  seq. 


310  (3d  ed.)     Pt.  III.     THE  LAW  OF  PEIOE  APPROPRIATION.       §  299 

watering  the  horse,  and  to  the  extent  of  the  times  in  the  year  he 
so  used  it,  and  the  administrator  could  transfer  it  to  other  uses  or 
to  use  on  other  lands.3 

The  subsequent  appropriator  who  claims  that  diversion  will  not 
injure  the  prior  appropriator  below  him  should  be  required  to 
establish  that  fact  by  clear  and  convincing  evidence.4  A  notice 
of  appropriation  is  ineffectual  against  water  already  appro- 
priated and  in  use.5  A  diminution  of  the  quantity  appropriated 
need  not  be  the  result  of  actual  diversion ;  for  example,  if  sawdust 
from  a  sawmill  clogs  up  one's  ditch  so  as  to  diminish  the  flow, 
it  is  actionable.6  Or. if  the  velocity  is  diminished  by  a  dam  pre- 
venting the  working  of  a  mining  claim  by  a  prior  appropriator, 
or  causing  irregularity  of  flow.7  Water  must  not  be  discharged 
into  another's  canal  to  his  injury.8  Under  the  doctrine  of  appro- 
priation of  water,  he  who  is  first  in  time  is  first  in  right,  and  so 
long  as  he  continues  to  apply  the  water  to  a  beneficial  use,  subse- 
quent appropriators  cannot  deprive  him  of  the  rights  his  appro- 
priation gives,  either  by  diminishing  the  quantity  or  deteriorating 
the  quality.9 

In  one  case  the  governing  force  of  priority  is  denied  on  the 
ground  of  the  selfish  result  to  which  it  led  where  the  prior  appro- 
priation of  a  stream  to  run  a  current-wheel  would  have  prevented 
irrigation,  by  a  subsequent  appropriator,  of  a  large  region ;  and 
the  prior  appropriator  was  not  given  damages  for  interference 
with  the  flow  to  the  injury  of  his  water-wheels.10  But  this  case 
is  really  based  upon  a  modification  of  the  law  of  appropriation, 
rather  than  under  it,  and  in  that  regard  we  consider  it  later.11 

Compliance  with  an  unconstitutional  statute  cannot  aid  a 
claim  of  priority.12 

3  Patterson  v.  Ryan   (Utah,  1910),  v.  Southern  Cal.  Ry.  Co.,  106  Cal.  257, 
108  Pac.  1118,  citing  this  book,  2d  ed.  46  Am.  St.  Rep.  287,  39  Pac.  610. 

4  Moe  v.  Harger,  10  Idaho,  302,  77  „  8  North  Point  etc.  Co.  v.  Utah  etc. 
Pac    645  Co.,   16   Utah,   246,   67   Am.   St.   Rep. 

'          '  ,,  ,,        x1onQx        607,  52  Pac.  168,  40  L.  R.  A.  851. 

5  Weidenstemer    v.    Mally     (1909),  »' Arizona     etc      Co.     v>     Gill      ie 

55  Wash.   ,9,  104  Pac.  143.  (Ariz  ?  1909)>.100  Pac.  465. 

6  Phoenix  Water  Co.  v.  Fletcher,  23  10  Schodde   v.    Twin   Falls   etc.   Co. 
Cal.  481,  15  Morr.  Min.  Rep.  185.  (Idaho),  161  Fed.  43,  88  C.  C.  A.  207. 

7  Phoenix  Water  Co.  v.  Fletcher,  23  n  Infra,  sec.  310. 

Cal.   481,    15    Morr.   Min.    Rep.    185;  12  Lamar  etc.  Co.  v.  Amity  etc.  Co., 

Natoma    etc.    Co.    v.    McCoy,    23    Cal.  26  Colo.  370,  77  Am.  St.  Rep.  261,  58 

490,  4  Morr.  Min.  Rep.  590;  Stone  v.  Pac.    600;    Great    Plains    etc.    Co.    v. 

Bumpers,   46   Cal.  218,  4  Morr.   Min.  Lamar  etc.  Co.,  31  Colo.  96,   71  Pac. 

Rep.  278;   Parker  v.  Gregg,   136  Cal.  1119;   Mold  v.  Lamar  Canal  Co.,  128 

413,  69  Pac.  22.     See,  also,  De  Baker  Fed.  776. 


1300  Ch.  14.     SENIOR  AND  JUNIOR  EIGHTS.         (3d  ed.)  311 

(3d  eH.) 

§  300.  Whole  Stream. — If  for  a  beneficial  purpose,  one  may 
hence  appropriate  a  whole  stream.13  An  appropriation  is  limited 
to  beneficial  use,  but  may  absorb  a  whole  stream  to  that  end.14 
"Under  such  doctrine  the  first  appropriator  may  appropriate  the 
entire  flow  of  a  stream,  if  used  in  proper  irrigation.15  Also,  a 
nonriparian  owner  may  appropriate  and  get  an  exclusive  right 
to  the  whole  water  of  a  stream  for  nonriparian  lands. ' ' 10  An- 
other says:  "Beyond  question,  under  our  laws  (Idaho),  a  party 
may  be  protected  in  the  use  of  all  the  water  he  actually  appro- 
priates and  uses,  even  if  it  be  every  drop  that  flows  in  as  great  a 
river  as  the  Snake. ' ' 17 

(3d  ed.) 

§  301.     In  Times  of  Deficiency. — In  times  of  natural  or  other 

deficiency,  also,  unless  otherwise  provided  by  statute,  the  prior 
appropriator  may  still  claim  his  full  amount;  the  loss  must  fall 
on  the  later  appropriators.  In  a  case  enforcing  an  appropria- 
tion to  the  extent  of  seventy-five  per  cent  of  the  whole  stream, 
it  is  said:  "It  further  appears  from  this  defense  that  at  certain 
seasons  of  the  year  the  flow  of  the  stream  will  only  supply  the 
needs  of  the  defendants.  It  appears,  therefore,  from  the  aver- 
ments of  this  defense,  that  the  defendants  have  a  prior  right  to 
the  use  of  the  water  from  the  natural  stream,  and,  when  low,  to 
the  entire  volume  thereof,  and  the  demurrer  thereto  should  have 
been  overruled."18  This  is  true  even  where  (indeed,  especially 
where)  unusual  scarcity  or  dry  season  causes  the  deficiency.19 

13  As  to  beneficial  use,  see  infra,  c.          17  Trade  etc.  Co.  v.  Fraser,  148  Fed. 
21.  587,  79  C.  C.  A.  37. 

14  Bolter  v.  Garrett,  44  Or.  304,  75  is 'Wellington  v.  Beck,  30  Colo.  409, 
Pac.  143;  Malad  etc.  Co.  v.  Campbell,  70   Pac.   687;    S.   C.,  43   Colo.   70,   95 
2  Idaho,  411,  18  Pac.  52;  Moe  v.  Har-  Pac.  297. 

ger,  10  Idaho,  302,  77  Pac.  645;  Lock-  19  Ibid.,   and   Huning  v.   Porter,   6 

wood  v.  Freeman,  15   Idaho,  395,  98  Ariz.  171,  54  Pac.  584;   City  of  Tel- 

Pac.  295;  Wellington  v.  Beck,  30  Colo.  luride  v.  Blair,  33  Colo.  353,  80  Pac. 

409,  70  Pae.  687;   Same  v.  Same,  43  1053.     Compare   Brown   v.   Smith,    10 

Colo.  70,  95  Pac.  297 ;   Alhambra  etc.  Cal.     508,   4    Morr.     Min.   Rep.    539 ; 

Co.  v.  Mayberry,  88  Cal.  74,  25  Pac.  Brown  v.  Mullin,  65   Cal.   89,   3   Paci 

1101;  Brown  v,  Mullin,  65  Cal.  89,  3  99.     "It  is  unfortunate  that  the  flood 

Pae.  99.  waters   of   Antoine    Creek   cannot   be 

15  Citing     Hammond     v.     Rose,    11  conserved  for  the  use  of  all,  but,  so 
Colo.  524,  7  Am.  St.  Rep.  258,  19  Pac.  long  as  our  laws  measure  the  rights 
466;  Drake  v.  Earhart,  2  Idaho,  750,  of  the  appropriator  of  water  by  the 
23  Pac.  541.  necessities  of  the  dry  season,  the  first 

16  Meng  v.  Coffey,  67  Neb.  500,  108  in  time  must  be  held  to  be  the  first 
Am.  St.  Rep.  697,  93  N.  W.  715,  60  in    right.     The   just     purpose    of   the 
L.  R.  A.  910.  trial  judge   to   apportion   the   waters 


312  (3d  ed.)     Pt.  III.     THE  LAW  OF  PEIOR  APPROPRIATION.       §  301 


This  is  in  marked  contrast  to  the  doctrine  of  riparian  rights, 
where  all  riparian  owners  have  an  equal  right,  and,  in  time  of 
deficiency,  the  water  would  be  apportioned  among  them.20 

These  possible  results  have  been  frequently  urged  as  argu- 
ments against  the  doctrine  of  appropriation,  saying  that,  the 
enforcement  of  appropriation  may  well  work  for  the  benefit  of  a 
few  against  many,  but  must  be  enforced  nevertheless,  and  it  is 
said  that  prior  appropriation  is  a  selfish  system.21  In  California 
the  court  said  that  it  would  not  require  a  prophetic  vision  to  see 
a  monopoly  of  waters  as  a  result  of  the  law  of  appropriation,22 


cannot  be  sustained  in  the  light  of  the 
evidence  showing  that  there  is  no  ex- 
cess of  water  running  to,  or  waste  by, 
the  appellants.  This  cause  is  re- 
manded with  instructions  to  enter  a 
decree  fixing  the  amount  of  water  ac- 
tually necessary  to  irrigate  the  lands 
of  appellants  even  to  the  full  flow  of 
the  stream  in  the  dry  season,"  etc. 
Avery  v.  Johnson  (Wash.),  109  Pac. 
1028. 

20  Infra,  sec.  751  et  seq.  See,  also, 
Kinney  on  Irrigation,  sees.  173,  225 
(saying  this  may  seem  a  selfish  prin- 
ciple to  one  acquainted  only  with  the 
common  law  upon  the  subject),  229, 
240;  Sayre  v.  Johnson,  33  Mont. 
15,  81  Pac.  389;  Kirk  v.  Batholomew, 
3  Idaho,  367,  29  Pac.  40;  and  the 
emphatic  opinion  in  Hillman  v.  Hard- 
wick,  3  Idaho,  255,  28  Pac.  438;  Long 
on  Irrigation,  sec.  57. 

The  State  Engineer  of  Idaho  saya 
in  Bulletin  216  of  the  Office  of  Ex- 
periment Stations,  United  States  De- 
partment of  Agriculture:  "So  long  as 
there  is  water  sufficient  for  all  ap- 
propriators  the  matter  of  priority  is 
of  no  particular  importance,  but  in 
case  of  shortage  of  water  it  becomes 
the  duty  of  the  water-master  to  see 
that  the  earlier  appropriators  are 
served,  although  the  later  appro- 
priators may  suffer.  To  illustrate :  In 
the  case  of  three  rights,  one  estab- 
lished in  1870,  the  second  in  1880, 
and  the  third  in  1890,  in  the  event 
of  shortage  the  two  earlier  rights 
would  receive  their  full  amount  and 
the  last  would  have  what  surplus  there 
might  be.  If  there  were  enough  to 
supply  only  one  of  the  rights,  the 
1870  right  would  receive  all  the  water 
and  the  two  later  ones  none  at  all. 
This,  in  simple  terms,  is  an  applica- 


tion of  the  law  of  priority  in  the  use 
of  water  and  the  equitable  principle 
upon  which  it  is  based  is  expressed 
in  the  words,  'first  in  time,  first  in 
right.'  " 

.-i  "A  few  men  will  locate  their 
farms  near  the  mouth  of  a  stream  and 
appropriate  the  waters  thereof,  and 
any  subsequent  locators  up  the  stream 
would  be  guilty  of  a  trespass  if  they 
undertook  to  use  any  of  the  waters 
thereof,  and  an  action  could  be  prose- 
cuted and  maintained  against  them. 
....  Thus,  the  prior  appropriator 
renders  vast  tracts  of  land  utterly 
worthless,  and  their  sale  is  lost  to  the 
government  and  their  cultivation  to 
the  p«ople."  Wade,  C.  J.,  in  Thorp 
v.  Freed,  1  Mont.  678,  arguing  that 
the  law  of  appropriation  should  be  re- 
jected entirely  as  to  irrigation. 

In  one  recent  case  it  is  said  that  an 
appropriation  may  be  made  though  it 
has  the  result  "to  lay  barren  and 
waste  the  lands  of  defendants  in  Mon- 
tana, that  two  farms  in  Wyoming 
may  be  supplied  with  water,"  because 
the  contention  to  the  contrary  "dis- 
regards the  maxim  that  he  who  is  first 
in  time  is  strongest  in  right,  which 
is  the  very  essence  of  the  doctrine  of 
appropriation."  Morris  v.  Bean,  146 
Fed.  435.  See,  also,  Cave  v.  Tyler,  133 
Cal.  566,  65  Pac.  1089.  Many  Colo- 
rado streams  are  already  over-appro- 
priated, says  the  court  in  Humphreys 
T.  Co.  v.  Frank,  46  Colo.  524,  105 
Pac.  109.3.  The  Boise  River  in  Idaho 
has  been  wholly  appropriated.  United 
States  v.  Burley,  172  Fed.  615. 

22  Lux  v.  Haggin,  69  Cal.  255,  10 
Pac.  674,  quoted  infra,  sec.  1015,  con- 
fining appropriation  in  California  to 
waters  on  public  lands. 


§  302  Ch.  14.     SENIOE  AND  JUNIOR  RIGHTS.         (3d  ed.)  313 

and  Mr.  Pinchot  says  such  a  monopoly  is  already  upon  us.  In 
Nebraska  a  statute  setting  up  the  law  of  prior  appropriation  was 
attacked  as  in  conflict  with  a  constitutional  prohibition  against 
monopolies,  but  it  was  held  that  the  requirement  that  the  prior 
appropriator  must  put  the  water  to  beneficial  use  before  he  can 
have  any  right  removes  the  system  from  such  invalidity.23 

Although  the  controlling  force  of  priority  has  long  been  ac- 
cepted and  applied,  yet  to-day  there  is  a  tendency  in  the  courts 
to  depart  from  this  extreme  position,  and,  in  times  of  scarcity, 
to  apportion  the  water  instead  of  enforcing  the  priorities;24  and 
there  is  also  some  movement  in  the  legislatures  to  enact  pro- 
rating statutes.25  Likewise  the  requirement  of  beneficial  use 
prevents  holding  the  water  for  speculation.  And  it  may  be  fur- 
ther noted  in  defense  that  since  most  of  the  large  appropriations 
are  made  for  distribution  of  the  water  to  public  use,  they  are 
subject  to  the  law  of  the  State  made  for  the  control  of  public 
service  and  to  prevent  abuses.1  • 


B.     JUNIOR  RIGHTS. 
(3d  ed.) 

§  302.  Successive  Appropriations. — It  is  well  settled  that,  sub- 
ject to  the  rule  of  priority,  later  comers  may  make  appropria- 
tions, each  later  comer  in  succession  being  required  to  respect 
the  appropriations  of  all  who  came  before  him.  Later  appropria- 
tions may  be  made  of  the  surplus  over  what  has  been  appro- 
priated by  prior  appropriators,  or  of  any  use  that  does  not  mate- 
rially interfere  with  prior  appropriators.2  In  Colorado  the  sue- 
as  Farmers'  Irr.  Dist.  v.  Frank,  72  Powell,  34  Cal.  109,  91  Am.  Dec.  685; 
Neb.  136,  100  N.  W.  286.  Of.  Munroe  Nevada  etc.  Co.  v.  Kidd,  37  Cal.  282, 
v.  Ivie,  2  Utah,  535,  8  Morr.  Min.  Rep.  at  313 ;  Higgins  v.  Barker,  42  Cal.  233, 
127.  7  Morr.  Min.  Rep.  525;  Smith  v. 

24  Infra,  sec.  310,  correlative  rights       ?'?ara,  43  Cal.  371   1  Morr.  Min  Rep. 
between  annronriators  6715   Stein  Canal  Co-  v-  Kern  Island 

etc.  Co.,  53  Cal.  563;  Hillman  v.  New- 
10  In'ra>  sec-  309-  ington,  57  Cal.  56;   Brown  v.  Mullin, 

1  Infra,  Part  VII,  sec.  1245  et  seq.      65    Cal.    89,    3    Pac.    99 ;    Jtmkana    v. 

2  Kelly  v.  Natoma  etc.  Co.,   6  Cal.       Bergin,  67  Cal.  267,  7  Pac.  684;  Edgar 
105,   1   Morr.   Min.   Rep.   592;   Brown       v.  Stevenson,  70  Cal.  286,  11  Pac.  704; 
v.    Smith,    10    Cal.    510;    Ortman    v.       Ball  v.  Kehl,  87  Cal.  505,  25  Pac.  679; 
Dixon,  13  Cal.  33,  4  Morr.  Min.  Rep.       Barrows  v.  Fox,  98  Cal.   63,  32   Pac. 
539;  McDonald  v.  Bear  River  etc.  Co.,       811;  Natoma  etc.  Co.  v.  Hancock,  101 
13  Cal.  220,  1  Morr.  Min.  Rep.  626;       Cal.   42,   31    Pac.    112,   35    Pac.   334; 
McKinney   v.   Smith,   21   Cal.   374,    1       Santa  Paula  Water  Co.  v.  Peralta,  113 
Morr.  Min.  Rep.  150;  American  Co.  v.  .     Cal.  38,  45  Pac.  168;  Senior  v.  Ander- 
Bradford,  27  Cal.  360,  15  Morr.  Min.       son,  115  Cal.  496,  47  Pac.  454;  Smith 
Rep.     190;     Nevada    Water     Co.     v.      v.  Hawkins,  120  Cal.  86,  52  Pac.  139, 


314  (3d  ed.)     Pt.  ILL     THE  LAW  OF  PRIOR  APPROPRIATION.       §  302 

cessive  appropriators  are  called  "senior"  and  "junior,"  names 
drawn  from  the  law  of  mining  locations,  where  priority  also 
governs. 

A  subsequent  appropriator  has  a  vested  right  against  his 
senior  to  insist  upon  the  continuance  of  the  conditions  that  ex- 
isted at  the  time  he  made  his  appropriation.3  "A  second  appro- 
priator has  a  right  to  have  the  water  continue  to  flow  as  it  flowed 
when  he  made  his  appropriation."4  The  subsequent  appro- 
priator is  entitled  to  the  surplus,  and  any  attempt  of  the  prior 
appropriator  to  make  a  sale  of  such  surplus  to  someone  else  to 
the  injury  of  existing  appropriators,  though  subsequent,  is  of  no 
avail.5  The  prior  cannot  charge  the  later  one  for  use  of  the 
surplus  water.6  It  has  been  held  that  the  fact  that  water  passed 
all  other  appropriators  raises  a  presumption  that  there  was  a 
surplus  in  favor  of  a  junior  appropriator.7 

Among  the  successive  appropriators  each  is  in  the  position  of 
a  prior  one  toward  all  who  are  subsequent  to  himself.8  The 
independence  of  the  appropriators  inter  se  is  shown  by  the  de- 
cision that  where  a  majority  of  users  on  a  stream  incorporate, 
they  have  no  right  to  regulate  the  use  of  the  minority  who  do  not 
pome  into  the  corporation.9 

There  may,  therefore,  be  numerous  appropriations  of  water  of 
the  same  stream,  and  for  use  at  different  times  and  seasons,  or 
for  different  purposes.10  And  after  the  rights  of  subsequent  ap- 
propriators have  attached,  the  prior  appropriator  cannot  change 
or  extend  his  use  to  their  injury.11  An  appropriator  of  water,  it 
is  true,  may  change  the  point  of  diversion  or  place  of  use,  so  long 

19    Morr.    Min.    Rep..  243;    Senior   v.          5  Creek  v.   Bozeman   Water  Co.,  15 

Anderson,  130  Cal.  290,  62  Pac.  563;  Mont.  131,  38  Pac.  459,  semble. 

Moe    v.    Harger,    10    Idaho,    302,    77  6  Mann  v.   Parker,   48  Or.   321,   86 

Pac.  645 ;  Mann  v.  Parker,  48  Or.  321,  pac.  598. 

86  Pac.  598;  McCall  v   Porter   42  Or  7  Md      y<  Barker  (19Q9)    lfj  Idah 

49,   70   Pae.    820,    71   Pac.    976;    Salt  7o    101   p.,,    9-4 

Lake   City  v.   Salt  Lake   etc.   Co.,   24 

Utah,  249,  67  Pac.  672,  61  L.  R.  A.  8  Pomeroy  on  Riparian  Rights,  sec. 

648,    25    Utah,    456,    71    Pac.    1069;  835  Kmney  on  Irrigation,  sec.  173  et 

Hough  v.  Porter,  51  Or.  318,  95  Pac.  secl- 

732,    98    Pac.    1083,    102    Pac.    728;  »  Bartholomew  v.  Fayette  etc.  Co., 

Whited  v.  Gavin  (Or.),  105  Pac.  396;  31  Utah,  1,  120  Am.  St.  Rep.  912,  86 

Featherman     v.     Hennessey     (Mont.,  Pac.  481. 

1911),  113  Pac.  751.  10  McCall  v.  Porter,  42  Or.  49,  70 

3  Handy   Ditch   Co.   v.  Louden   etc.  Pac.  820,  71  Pac.  976. 

Co.,  27  Colo.  515,  62  Pac.  847;  Baer  u  Cole   v.   Logan,   24    Or.   304,    33 

etc.   Co.   v.   Wilson,   38   Colo.    101,   88  Pac.   568;    Bolter  v.   Garrett,   44   Or. 

Pac.  265.  304,  75  Pac.  142;  Proctor  v.  Jennings, 

4  Lobdell  v.  Simpson,  2  Nev.  274,  90  6  Xev.  83,  3  Am.  Rep.  240,  4  Morr. 
Am.  Dec.  537.  Min.  Rep.  265. 


§302 


Ch.  14.     SENIOE  AND  JUNIOR  BIGHTS.         (3d  rd.)  315 


as  he  does  not  thereby  injure  or  affect  the  rights  of  others,  because 
in  such  case  they  have  no  ground  for  complaint.  But  he  cannot 
extend  the  use,  so  as  to  injure  or  interfere  with  subsequently  ac- 
quired rights.12  In  the  cases  in  the  following  note  the  prior  ap- 
propriator  was  protected  from  the  acts  of  a  subsequent  appro- 
priator  which  injured  him,13  while  in  the  cases  in  the  next  note 
the  subsequent  appropriator  was  protected  from  unlawful  acts  of 
the  prior  appropriator,  the  subsequent  appropriator 's  right  to 
surplus  over  the  prior  appropriation  being  protected.14 

The  relative  position  of  the  appropriators,  whether  above  or  be- 
low each  other,  is  immaterial.15 

The  rule  of  successive  appropriation  is  a  simple  one,  but  in  the 
heat  of  conflict  between  appropriators  it  has  been  necessary  for 
the  courts  to  repeat  it  again  and  again.  Consequently  some  repre- 
sentative quotations  expressing  the  rule  are  appended  in  the  note.16 


12  Williams  v.   Altnow,  51  Or.  275, 
95  Pac.  200,  97  Pac.  539.    Infra,  c.  22. 

13  Cache    La    Poudre    etc.    Co.    v. 
Water  Supply  etc.  Co.,  25  Colo.  161, 
71    Am.    St.    Eep.    131,   53    Pac.   331, 
46  L.  B.  A.   175;   Dunniway  v.  Law- 
son,  6  Idaho,  28,  51  Pac.  1032;   Salt 
Lake   City  v.   Salt  Lake  etc.   Co.,   24 
Utah,  249,  67  Pac.  672,  61  L.  B.  A. 
648;   Morris  v.  Bean,   123   Fed.   618; 
Lytle  Creek  Co.  v.  Perdew,  65  Cal.  447, 
4     Pac.     426;     Simpson     v.     Harrah 
(1909),  54  Or.  448,  103  Pac.  58,  1007. 

14  Saint  v.  Guerrerio,  17  Colo.  448, 
31   Am.   St.   Eep.   320,   30   Pac.   335; 
Alder  Gulch  etc.  Co.  v.  Hayes,  6  Mont. 
31,  9  Pac.  581;   Quigley  v.  Birdseye, 
11  Mont.  439,  28  Pac.  741;  Barnes  v. 
Sabron,   10  Nev.  217;   Union  etc.  Co. 
v.    Dangberg,    81    Fed.    73;    Mann   v. 
Parker,    48    Or.    321,    86    Pac.    598; 
Smith  v.  Duff   (1909),  39  Mont.  382, 
133  Am.  St.  Bep.  587,  102  Pac.  984; 
Vogel  v.  Minnesota  etc.  Co.,  47  Colo. 
534,    107    Pac.    1108.     Cf.    Miller    v. 
Wheeler    (1909),   54   Wash.   429,   103 
Pac.   641,   23   L.   E.   A.,   N.   S.,   1065. 
Where  the  quantity  allowed  a  partic- 
ular  owner   for   irrigation   is   not   re- 
quired, it  becomes  subject  to  use  by 
others  on  the  strenm  in  the  order  of 
their   rights.     Whited   v.   Gavin    (Or., 
1909),  105  Pac.  396. 

is  Hill  v.  Kin?.  S  Cal.  336,  4  Morr. 
Min.  Eep.  533;  Windsor  Co.  v.  Hoff- 
man Co.  (Colo.),  109  Pac.  422;  Same 
v.  Same  (Colo.),  109  Pac.  425. 


16  "Priority  of  appropriation,  where 
no  other  title  exists,  undoubtedly  gives 
the  better  right.  And  the  rights  of 
all  subsequent  appropriators  are  sub- 
ject to  his  who  is  first  in  time.  But 
as  others  coming  on  the  streams  sub- 
sequently may  appropriate  and  acquire 
a  right  to  the  surplus  or  residuum,  so 
the  rights  of  each  successive  person 
appropriating  water  from  a  stream 
are  subordinate  to  all  those  previously 
acquired,  and  the  rights  of  each  are 
to  be  determined  by  the  condition  of 
things  at  the  time  he  makes  his  ap- 
propriation. So  far  is  tkis  rule 
carried,  that  those  who  are  prior  to 
him  can  in  no  way  change  or  extend 
their  use  to  his  prejudice,  but  are  lim- 
ited to  the  rights  enjoyed  by  them 
when  he  secured  his.  Nor  has  anyone 
the  right  to  do  anything  which  will, 
in  the  natural  or  probable  course  of 
things,  curtail  or  interfere  with  the 
prior  acquired  rights  of  those  either 
above  or  below  him  on  the  same 
stream.  The  subsequent  appropriator 
only  acquired  what  has  not  been  se- 
cured by  those  prior  to  him  in  time. 
But  what  he  does  thus  secure  is  as 
absolute  and  perfect  and  free  from 
any  right  of  others  to  interfere  with 
it  as  the  rights  of  those  before  him 
are  secure  from  interference  by  him." 
Proctor  v.  Jennings,  6  Nev.  83,  3  Am. 
Bep.  240,  4  Morr.  Min.  Eep.  265.  Held, 
a  subsequent  appropriator's  dam  is  not 
actionable  if  it  interferes  with  prior's 


316  (3d  ed.)     Pt.  III.     THE  LAW  OF  PEIOR  APPROPRIATION.       §  303 


(3d  ed.) 

§  303.  Same. — Where  water  is  appropriated  for  the  purpose 
of  furnishing  power  to  a  mill  and  after  its  use  in  the  mill  is  per- 
mitted to  flow,  undiminished,  back  into  the  natural  stream,  it 
becomes  subject  to  another  appropriation,  and  when  so  appro- 
priated the  mill  appropriator  cannot  change  the  character  of  use 
or  place  of  diversion  in  such  manner  as  to  injure  or  deprive  the 
latter  appropriator  below  the  mill  of  his  use  of  the  water,17  nor 
change  to  storage  or  irrigation  so  as  to  prevent  the  continuance  of 
the  discharge.18  Water  of  a  stream  used  for  placer  mining  pur- 
poses and  finding  its  way  back  into  the  stream  is  subject  to  be 
appropriated  to  agricultural  uses  by  farmers  on  the  stream  below.10 
Waste  water  returned  to  the  natural  stream  from  which  taken 


waterwheel    above    only    because    of 
heavy  and  fortuitous  rains. 

"When  the  right  of  the  complain- 
ant attached  and  became  fixed,  the  re- 
spondents could  not  in  any  manner 
encroach  upon  or  interfere  with  it  by 
afterward  extending  and  enlarging 
their  own  rights  beyond  their  first 
appropriation,  by  the  acquisition  of 
additional  land,  and  the  construction 
of  ditches  or  other  means  to  convey 
additional  quantities  of  water  away 
from  said  river  to  any  portion  of  their 
subsequently  acquired  lands.  No  rule 
of  law  is  better  settled,  oftener  ap- 
plied, more  rigidly  enforced,  or  based 
upon  stronger  principles  of  equity, 
justice,  and  right,  in  regard  to  the 
beneficial  use  of  water,  and  the  rights 
acquired  by  a  priority  of  appropria- 
tion. The  right  of  the  first  appro- 
priator is  fixed  by  his  appropriation, 
and  when  others  locate  upon  the 
stream,  or  appropriate  the  water,  he 
cannot  enlarge  his  original  appropria- 
tion, or  make  any  change  in  the  chan- 
nel, to  their  injury.  Each  subsequent 
locator  or  appropriator  is  entitled  to 
have  the  water  flow  in  the  same  man- 
ner as  when  he  located,  and  may 
insist  that  the  prior  appropriator  shall 
be  confined  to  what  was  actually  ap- 
propriated, or  necessary  for  the  pur- 
poses for  which  they  intended  to  use 
the  water.  In  other  words,  a  person 
appropriating  a  water-right  on  a 
stream  already  partly  appropriated 
acquires  a  right  to  the  surplus  or 
residuum  he  appropriates;  and  those 


who  acquired  prior  rights,  whether 
above  or  below  him,  on  the  stream, 
can  in  no  way  change  or  extend  their 
use  of  the  water  to  his  prejudice,  but 
are  limited  to  the  rights  enjoyed  by 
them  when  he  secured  his."  Union 
Min.  Co.  v.  Dangberg,  81  Fed.  73,  per 
Judge  Hawley. 

"When  rights  of  subsequent  ap- 
propriators  once  attach,  the  prior  ap- 
propriator cannot  encroach  on  them 
by  extending  his  use  beyond  the  first 
appropriation Each  is,  in  re- 
spect to  his  own  appropriation,  prior 
in  time  and  exclusive  in  right." 
Nevada  M.  Co.  v.  Powell,  34  Cal.  109, 
91  Am.  Dec.  685,  4  Morr.  Min.  Rep. 
253. 

17  Last   Chance   etc.   Co.  v.  Bunker 
Hill  etc.  Co.    (C.  C.  Idaho),  49  Fed. 
430,   17  Morr.  Min.  Rep.   449;    Mills' 
Irrigation  Manual,  p.  70,  citing  Cache 
La  Poudre  etc.  Co.  v.  Water  Supply 
Co.,  25  Colo.  161,  71  Am.  St.  Rep.  131, 
53   Pac.   331,   46   L.   R.   A.   175.     See 
Trambley  v.  Luterman,   6  N.  M.   15, 
27    Pac.    312;    Gassert    v.    Noyes,    18 
Mont.  216,  44  Pac.  959. 

18  Windsor  Co.  v.  Lake  Supply  Co., 
44  Colo.  214,  98  Pac.   729.     Compare 
Hutchison  v.  Watson   D.   Co.    (1909), 
16  Idaho,  484,  133  Am.  St.  Rep.  125, 
101  Pac.  1059,  holding  (semble)  that 
an  appropriator  is  in  duty  bound  to 
return  water  to  the  stream  from  which 
it  is  taken  even  though  no  lower  ap- 
propriator exists*  thereon. 

ia  Head  et  al.  v.  Hale  et  al.  (1909), 
38  Mont.  303,  100  Pac.  222. 


§  304  Ch.  14.     SENIOE  AND  JUNIOB  EIGHTS.         (3d  ed.)  M7 

belongs  to  the  appropriators  below  thereon,  whether  it  comes  by 
percolation,  surface  or  subterranean  flow.20 

These  are  all  rulings  having  in  mind  water  returned  to  the 
stream  from  which  diverted,  and,  although  called  "waste,"  being 
but  a  surplus  of  the  natural  flow.  As  to  cases  of  waste  water  not 
returned  to  the  stream  from  which  taken,  but  entering  a  different 
drainage,  or  wasted  at  a  distance  from  any  stream  at  all,  different 
considerations  are  involved.21 

(3d  ed.) 

§  304.     Same. — Where  a  prior  appropriation  is  for  filling  a 

reservoir,  a  later  appropriation  may  be  made  by  another  of  the 
surplus  after  the  prior  reservoir  is  filled,22  and  the  second  is  senior 
to  all  subsequent  to  him.  Where  a  system  of  exchanges  of  water 
between  different  owners  of  reservoirs,  if  put  in  practice,  would 
necessarily  convert  a  junior  water-right  into  a  senior  priority,  it 
could  not  be  sustained.  In  this  case  the  facts  were  quite  compli- 
cated, and  may  be  stated  to  show  the  character  of  the  difficulties 
that  arise.  A  mill  appropriated  sixty  second-feet,  returning  it  to 
the  stream  after  use.  Thereafter  a  "storage"  company  above  the 
mill  appropriated,  subject  thereto,  enough  water  to  fill  its  reser- 
voir. Still  later,  below  the  mill,  a  "reservoir"  company  appro- 
priated the  sixty  second-feet  returned  to  the  stream  by  the  mill. 
It  was  held  that  this  third  appropriation  was  superior  to  any  right 
of  the  "storage"  company  to  retain  that  sixty  second-feet,  because, 
as  respects  that  specific  flow,  the  "reservoir  company"  was,  on 
the  facts,  the  first  appropriator,  being  a  surplus  over  the  prior 
storage  appropriation ;  and  this  right  to  such  surplus  is  not  lessened 
by  abandonment  by  the  mill  company,  nor  can  the  mill  company 
sell  its  rights  to  the  "storage"  company  to  the  "reservoir"  com- 
pany's prejudice.23  Some  special  Colorado  law  appears  in  this 
case  regarding  successive  reservoir  appropriations  (appropriations 
measured  by  volume)  as  distinguished  from  appropriations  of  con- 
tinuous flow.24 

20  La  Jara  etc.  Co.  v.   Hansen,  35  Wollman  v.  Garringer,  1  Mont.  544.  1 

Colo.  105,  83  Pac.  645;  Water  Supply  Morr.  Min.  Eep.  675;  Hough  v.  Porter, 

&  Storage  Co.  v.  Larimer  etc.  Eeser-  51  Or.  318,  95  Pac.  732,  98  Pac.  1083, 

voir  Co.,  25  Colo.  87-94,  53  Pac.  386;  102  Pac.  728. 

Clark  v.  Ashley,  34  Colo.  285,  82  Pac.  21  Supra,  c.  4,  especially  sees.  55,  61. 

588;    McC'lellan    v.    Hurdle,    3    Colo.  22  Windsor  Ees.  Co.  v.  Lake  Supply 

App.  434,  33  Pac.  280;   Schneider  v.  Co.,  44  Colo.  214,  98  Pac.  729. 

Schneider,  36  Colo.  518,  86  Pac.  348;  23  Windsor  Co.  v.  Lake  Supply  Co., 

Schulz  v.  Sweeny,  19  Nev.  359,  3  Am.  44  Colo.  214,  98  Pac.  729. 

St.  Kep.  8S8,  11  Pac.  253.     And  see  24  See  infra,  sec.  475  et  seq. 


318  (3ded.)     Pt.  IIL     THE  LAW  OF  PRIOR  APPROPRIATION.       §305 

A  prior  appropriates  of  a  lake  by  pumping  cannot  prevent  a 
subsequent  appropriation  of  any  of  the  lake  water  which  will  not 
diminish  the  quantity  nor  increase  the  cost  of  the  prior  right.25 

The  prior  appropriator  is  limited  to  the  quantity  appropriated 
by  him  at  the  time  of  the  subsequent  appropriation,  and  cannot 
thereafter  take  an  increased  quantity  ;  l  but  •  an  increase  of  mill 
capacity,2  or  an  increase  of  acreage  irrigated  does  not  necessarily 
per  se  show  the  use  of  more  water;  it  may  merely  show  greater 
efficiency  of  the  use  of  the  same  water.3 

The  same  appropriator  may  have  two  or  more  priorities  from 
the  same  stream,  but  of  different  dates,  one  of  which  will  be 
superior  to  another  appropriator  because  first  in  time,  and  the 
other  inferior  because  not  made  until  the  intervening  right  had 
been  acquired.4  Where  the  court  found  that  appellee  made  two 
distinct  appropriations  of  water  for  a  reservoir,  the  first  on  March 
5,  1901,  of  two  hundred  cubic  feet  per  second,  and  the  second,  on 
October  22d,  of  the  same  volume,  a  decree  awarding  appellee  a 
priority  of  four  hundred  cubic  feet  per  second,  as  to  March  5, 
1901,  was  erroneous.5  That  the  same  irrigating  ditch  may  have 
two  or  more  priorities  belonging  to  the  same  party  or  to  different 
parties  is  not  an  open  question  in  Colorado.6  That  is,  where  one 
makes  several  appropriations  at  different  times,  he  may  become 
both  a  prior  and  a  subsequent  appropriator  in  relation  to  other 
users,  and  his  rights  will  not  merge,  but  will  stand  as  though  his 
multiple  rights  belonged  to  different  persons  independently  of 
each  other. 

(3d  ed.) 

§  305.     Periodical  Appropriations.  —  The  later  appropriation  in 

most  of  the  cases  is  a  claim  to  the  surplus  in  amount  of  water. 

25  Dictum,    Duckworth    v.    Watson-      ,Co.  v.  Meadow  etc.  Co.,  35  Colo.  588, 
ville  etc.  Co.,  158  Cal.  206,  110  Pac.      86  Pac.  748. 


>;      T^     Tf         r-f-      r'  4  Whited  v.  Cavin   (Or.),  105  Pac. 

Pac.  338.     Cf  .  Salt  Lake  City  v.  Gard-  376  at  3Q9 

ner  (Utah),  114  Pac.  147.  ' 

1  Rutherford    v.    Lucerne    etc.    Co.,  5  Windsor  Res.  Co.  v.  Lake  Supply 
12  Wyo.  299,  75  Pac.  445  ;   Taughen-  Cov  supra. 

baugh  v.  Clark,  6  Colo.  App.  235,  40  6  Park  v.  Park  (1909),  45  Colo.  347, 

Pac.    153;     Toohey    v.    Campbell,    24  101  Pac.  406;   Thomas  v.  Guiraud  et 

Mont.  13,  60  Pac.  396.  al.,  6  Colo.  530;  Rominger  v.  Squires, 

2  Union  Min.  Co.  v.  Dangberg,  81  9   Colo.   327,   12   Pac.   213;    Fuller  v. 
Fed.  73.  Swan  River  Placer  Min.  Co.,  12  Colo. 

3  Cache  La  Poudre  etc.  Co.  v.  Lar-  12,  19  Pac.  836,  16  Morr.  Min.  Rep. 
imer  etc.   Co.,   25   Colo.   144,   71   Am.  252;  Farmers'  High  Line  C.  &  R.  Co. 
St.    Rep.    123,    53    Pac.    318;    Platte  v.  Southworth,  13  Colo.   Ill,  21   Pac. 
Valley  etc.   Co.  v.  Central  Trust  Co.,  1028,  4  L.  R.  A.  767;  Nichols  v.  Mc- 
32  Colo.  102,  75  Pae.  391;  Fulton  etc.  Intosh,  19  Colo.  22,  34  Pac.  278. 


§  305  Ch.  14.     SENIOB  AND  JUNIOR  EIGHTS.         (3d  od.)  319 

It  may  just  as  well,  however,  be  an  appropriation  of  the  surplus 
in  time,  to  use  the  whole  or  part  when  the  prior  claimant  is  not 
using  it  at  certain  times.  In  Smith  v.  O'Hara  (the  leading  case)  T 
the  court  says:  "If  the  person  who  first  appropriates  the  waters 
of  a  stream  only  appropriates  a  part,  another  person  may  appro- 
priate a  part  or  the  whole  of  the  residue ;  and  when  appropriated  by 
him  his  right  thereto  is  as  perfect,  and  entitled  to  the  same  protec- 
tion, as  that  of  the  first  appropriator  to  the  portion  appropriated  by 
him.  In  Ortman  v.  Dixon,8  it  was  decreed  that  the  defendants 
were  entitled  to  the  waters  of  the  creek  for  the  use  of  their  mill; 
that  the  plaintiffs  were  then  •  entitled  to  sufficient  water  to  fill 
their  ditch  No.  2 ;  and  that  the  defendants  were  next  entitled  to 
the  residue  to  fill  their  ditch  No.  3.  The  cases  are  very  numerous 
which  affirm,  or  assume  without  question,  this  doctrine.  It  is 
usually  the  case  that  the  amount  of  water  to  which  the  several 
persons  claiming  its  use  are  entitled  is  measured  by  inches,  ac- 
cording to  miner's  measurement,  or  by  the  capacity  of  the  ditches 
through  which  it  is  conducted  from  the  stream,  but  there  is  no 
reason  why  the  amount  may  not  be  measured  in  some  other  mode. 
They  hold  the  amount  appropriated  by  them  respectively  as  they 
would  do  had  the  paramount  proprietor  granted  to  each  the  amount 
by  him  appropriated.  The  right  to  use  the  waters,  or  a  certain 
portion  of  them,  might  be  granted  to  one  person  for  certain  months, 
days  or  parts  of  days,  and  to  other  persons  for  other  specified 
times.  An  agriculturist  might  appropriate  the  waters  of  a  stream 
for  irrigation  during  the  dry  season,9  and  a  miner  might  appro- 
priate them  for  his  purposes  during  the  remainder  of  the  year. 
And  so  may  several  persons  appropriate  the  waters  for  use  during 
any  different  periods.  There  is  no  difference  in  principle  between 
appropriations  of  waters,  measured  by  time,  and  those  measured 
by  volume."  30 

At  all  times  that  the  water  is  not  required  by  one  appropriator 
it  should  be  at  the  disposal  of  the  other  for  irrigation  and  other 

1  43  Cal.  371,  at  376,  1  Morr.  Min.  1107;  Cache  La  Poudre  Co.  v.  Water 

Rep.  671.  Supply  Co.,  25  Colo.  161,  71  Am.  St. 

s  13  Cal.  34.  Rep.   131,  53   Pac.   331,  46  L.  R.   A. 

»  Dry  season  defined.  Daly  v.  Rud-  175 ;  City  of  Telluride  v.  Blair,  33 

Gell,  137  Cal.  671,  676,  70  Pac.  784.  Colo.  353,  80  Pac.  1053;  Barnes  v. 

10  To  the  same  effect,  Peregoy  v.  Sabron,  10  Nev.  217,  4  Morr.  Min. 

Sellick,  79  Cal.  568,  21  Pac.  966;  Rep.  673  (quoting  Smith  v.  O'Hara) ; 

Santa  Paula  Water  Co.  v.  Peralta,  113  Twaddle  v.  Winters,  29  Nev.  88,  85 

Cal.  38,  45  Pac.  168;  Sonthside  etc.  Pac.  283,  89  Pac.  289;  Mann  v. 

Co.  v.  Burson,  147  Cal.  401,  81  Pac.  Parker,  48  Or.  321,  86  Pac.  598; 


320  (3d  ed.)     Pt.  III.     THE  LAW  OF  PKIOB  APPROPRIATION".       §  305 

uses  when  needed.11  An  appropriation  of  water  is  limited,  in 
quantity  as  well  as  in  time,  to  the  extent  of  the  appropriation,  and, 
where  water  was  taken  from  a  ditch  for  mining  only  through  the 
winter  months  up  to  June  1st,  the  right  of  appropriation  was  lim- 
ited to  that  period.12  "There  is  no  doubt  that,  where  a  party  in 
the  appropriation  of  water  limits  himself  in  using  it  to  certain 
specified  dates,  subsequent  appropriators  may  acquire  a  vested 
right  to  the  water  to  be  used  at  times  not  embraced  in  the  claim 
of  the  first  appropriator. "  13  In  Barnes  v.  Sabron  u  the  court 
said:  "We  think  the  rule  is  well  settled,  upon  reason  and  author- 
ity, that,  if  the  first  appropriator  only  appropriates  a  part  of  the 
waters  of  a  stream  for  a  certain  period  of  time,  any  other  person 
or  persons  may  not  only  appropriate  a  part  or  the  whole  of  the 
residue,  and  acquire  a  right  thereto  as  perfect  as  the  first  appro- 
priator, but  may  also  acquire  a  right  to  the  quantity  of  water  used 
by  the  first  appropriator  at  such  times  as  not  needed  or  used  by 
him.  In  other  words,  if  plaintiff  only  appropriated  the  water 
during  certain  days  in  the  week,  or  during  a  certain  number  of 
days  in  a  month,  then  the  defendants  would  be  entitled  to  its  use 
in  the  other  days  of  the  week,  or  the  other  days  in  the  month." 

The  essential  element  necessary  to  make  an  appropriation 
periodical  in  character  consists  in  the  intention  of  the  appro- 
priator to  so  limit  his  right.  Where  the  intermittent  character  of 
use  is  not  pursuant  to  design,  but  is  accidental  or  due  to  unfore- 
seen causes  (having  intended  a  continuous  use  at  all  times),  the 
appropriation  is  not  within  the  periodical,  class.  In  such  cases 
during  the  nonuse  periods  the  water  may  be  taken  by  others  as 
temporary  appropriations,  but  they  cannot  insist  upon  receiving 
the  water  at  any  stated  periods  in  the  absence  of  prescription  or 
forfeiture  by  the  prior  claimant.  An  appropriation  is  not  periodi- 
cal in  character  unless  so  intended ;  such  intent  being  drawn  from 
acts  and  circumstances  as  much  as  from  the  appropriator 's  actual 
expression  or  claim  or  notice.15 

Stowell  v.  Johnson,   7   Utah,   215,   26  12  Davis  v.  Chamberlain,  51  Or.  304, 

Pac.    290;    Farnham    on    Waters,    p.  98  Pac.  154. 

2088;    Pomeroy    oh   Riparian    Rights,  13  Rodgers  v.  Pitt,  129  Fed.  932. 

see.  84:  14  10  Nev.  217,  245,  4  Morr.  Min. 

ll  Gardner  v.  Wright,  49  Or.   609,  Rep.  673. 

91  Pac.  286;  Hough  v.  Porter,  51  Or.  15  For   example,   it    is   held:    ''The 

318,  95  Pac.  732,   98  Pac.   1083.   ]02  fact  that  the  volume  of  water,  by  rea- 

Pac.  728;  Whited  v.  Cavin  (Or.,  1909),  son  of  climatic  conditions,  is  sufficient 

105  Pac.  396.  for   the   use   intended   during   certain 


§  306  Ch.  14.     SENIOK  AND  JUNIOR  BIGHTS.         (3d  ed.)  321 

(3d  ed.) 

§  306.  Temporary  Appropriation. — A  later  comer  may  make 
an  appropriation,  temporary  in  its  nature,  in  the  following  cases: 

(a)  Where  the  prior  appropriator  has  posted  his  notice  and 
begun  construction  work,  but  has  not  yet  completed  his  flumes  or 
other  appliances  by  which  the  water  is  to  be  diverted.     During 
this  interval,  which  may  last  for  a  year  or  more  in  some  cases, 
others  have  a  right  to  use  the  water.     Their  right  is  entirely  a 
temporary  one,  however,  and  ceases  when  the  works  of  the  prior 
claimant  are  completed.16     This  temporary  use  becomes  wrongful 
if  it  hinders  the  prior  claimant's  construction  work,  or  prevents 
his  diversion  of  the  water  when  his  works  are  finished.17     Likewise 
it  must  leave  him  sufficient  water  during  the  construction  work 
to  keep  his  new  ditch  in  good  condition,  or  the  water  otherwise 
needed  to  carry  on  his  construction  work.18     The  prior  claimant 
need  take  no  notice    of    temporary  appropriations  of    this  kind 
during  the  progress  of  his  construction  work ;  they  cease  ipso  facto 
when  he  is  ready,  though  he  has  not  warned  them.19 

(b)  After  the  works  are  completed  but  pending  the  application 
of  the  water  thereby  to  actual  use.20 

(c)  Where,  after  actual   use  has  begun,  the  prior  appropriator 
who  has  been  using  the  water  ceases  temporarily  to  do"  so.     Dur- 
ing such  time,  a  later    comer   may  divert    the  water  and  use  it. 
While  a  ditch  by  which  the  waters  of  a  stream  have  been  appro- 
priated is  out  of  repair,  and  not  in  a  condition  to  carry  any  water, 
an  action  will  not  lie  to  abate,  as  a  nuisance,  a  reservoir  constructed 
across  the  bed  of  the  stream,  above  the  head  of  the  ditch,  by  which 
the  water  of  the  stream  is  collected  and  detained  and  caused  to 
overflow  unequally.21 

It  will  thus  be  seen  that  a  fundamental  object  of  the  law  of 
appropriation  now  is  to  have  the  water  put  to  a  beneficial  use ;  con- 
versely, to  have  none  wasted.  There  are  authorities  against  this, 

portions  of  the  year  only,  does  not,  of  17  Ibid. 

itself,  limit  the  appropriation  to  such  is  Ibid.;  and  Weaver  v.  Conger,  10 

periods  of  time,  but  is  available  when-  Cal.  233,  6  Morr.  Min.  Rep.  203 

ever,  by  reason  of  the  flow    there  is  19  /b^.     and     Woolman     v.     e^. 

sufficient    water    for    such    beneficial  rf           l  ^         ^       M            . 

use."     City  o±   Tellunde  v.  Davis,  33  R7/" 

Colo.  355,   108  Am.  St.  Rep.   101,  80 

Pac.  1051.  °ee  iu*ure  needs,  infra,  sec.  483 

16  Nevada  etc.  Co.  v.  Kidd,  37  Cal.  et  secl- 

282;  Miles  v.  Butte  etc.  Co.,  32  Mont.  21  Bear  River  etc.  Co.  v.  Boles,  24 

56,  79  Pac.  549.  Cal.  359. 
Wrter  Rights — 21 


322  (3d  ed.)     Pt.  III.     THE  LAW  OF  PKIOE  APPEOPEIATION.       §  307 

based  on  the  doctrine  of  "injuria  sine  damno,"  which  hold  that  the 
prior  appropriator  is  entitled  to  the  flow  whether  using  it  or  not, 
and  that  temporary  use  by  others  during  the  prior's  nonuse  will 
be  enjoined;  but  we  think  these  cases  are  against  the  prevailing 
rule  to-day ; 22  and  after  the  lapse  of  a  fixed  period  of  time  of  non- 
use  by  the  prior  owner,  the  subsequent  right  is  not  only  recognized, 
but  ceases  to  be  temporary  and  becomes  permanent,  irrespective 
of  any  question  of  prescription.23 

(3d  ed.) 

§  307.  No  Partiality. — Appropriators  following  all  pursuits 
are,  as  we  have  seen,24  all  on  an  equal  footing.  As  is  said  in  Basey 
v.  Gallagher : 25  "No  distinction  is  made  in  those  States  and  Terri- 
tories by  the  custom  of  miners  and  settlers,  or  by  the  courts,  in  the 
rights  of  the  first  appropriator,  from  the  use  made  of  the  water, 

if  the  use  be  a  beneficial  one Water  is  diverted'  to  propel 

machinery  in  flourmills  and  sawmills,  and  to  irrigate  land  for  cul- 
tivation, as  well  as  to  enable  miners  to  work  their  mining  claims, 
and  in  all  such  cases  the  right  of  the  first  appropriator,  exercised 
within  reasonable  limits,  is  respected  and  enforced."  Whether  the 
prior  appropriator  is  himself  a  miner  or  not  makes  no  difference. 
The  miner  has  no  preference  over  an  agriculturist  in  making  an 
appropriation.1  To  the  cases  cited  ante  2  we  may  add  a  quotation 
from  another.  Says  the  court  in  Wixon  v.  Bear  River  etc.  Co. : s 
' '  The  four  remaining  instructions  refused  by  the  court  are  founded 
upon  the  theory  that  in  the  mineral  districts  of  this  State,  the 
right  of  miners  and  persons  owning  ditches  constructed  for  min- 
ing purposes  are  paramount  to  all  other  rights  and  interests  of  a 
different  character  regardless  of  the  time  or  mode  of  their  acquisi- 
tion; thus  annihilating  the  doctrine  of  priority  in  all  cases  where 
the  contest  is  between  a  miner  or  ditch  owner  and  one  who  claims 
the  exercise  of  any  other  kind  of  right  or  ownership  of  any  other 
kind  of  interest.  To  such  a  doctrine  we  are  unable  to  subscribe, 
nor  do  we  think  it  clothed  with  a  plausibility  sufficient  to  justify 

22  Infra,  sec.  642.  *  Natoma  etc.  Co.  v.  Hancock,  101 

23  Infra,  see.  575  et  seq.     See  es-  Cal.   42,   31    Pac.    112,   35   Pac.    334. 
pecially   Smith   v.   Hawkins,   120   Cal.  See  Revenue   etc.   Co.   v.   Balderstone 
403    52  Pac.  139    19  Morr.  Min.  Eep.  2  Alaska,  363;  Arizona  Copper  Co.  v. 
243!  Gillespie  (Ariz.),  100  Pac.  465;  Basey 

V.  Gallagher,  supra. 

24  Supra,  sec.  85.  2  Sec   85. 

25  87  U.   S.  670,  22  L.  Ed.  452,  1  3  24  Cal.  367,  at  373,  85  Am.  Dec. 
Morr.  Min.  Eep.  683.                                     69,  1  Morr.  Min.  Eep.  656. 


§  307  Ch.  14.     SENIOR  AND  JUNIOR  RIGHTS.         (3d  ed.)  323 

us  in  combating  it."  And  so,  while  a  miner,  prior  to  a  sawmill, 
was  protected,4  on  the  other  hand  the  sawmill  being  prior  was  pro- 
tected.5 Nor  have  irrigators,  aside  from  statute,  any  preference 
over  miners  if  later  in  time,6  but  prevail  over  miners  if  prior  in 
time.7  Nor,  aside  from  statute,  has  manufacturing  any  prefer- 
ence.8 

In  one  case9  it  is  said:  "An  earnest  argument  is  made  on  behalf 
of  the  respondents  to  the  effect  that  the  agricultural  interests 
of  Carson  Valley  are  of  paramount  importance  to  those  of  the  mill 
owners  on  the  Carson  River;  that  the  necessaries  of  life  are  pro- 
•duced  by  the  farmers,  and  cannot  be  successfully  brought  forth 
without  the  use  of  water  for  the  irrigation  of  their  crops.  But  of 
what  general  use,  independent  of  the  wants  and  necessities  of 
themselves  and  their  families,  would  the  products  of  their  farms 
be,  unless  the  other  industries  which  furnish  a  market  for  the 
crops  were  equally  protected  in  their  rights?  The  money  neces- 
sary to  be  obtained  in  order  to  enable  the  farmers  to  sell  their 
crops  with  profit  must  be  obtained  from  other  sources — from 
other  avenues  of  industrial  and  business  pursuits.  The  prospector 
and  capitalist,  laborer  and  miner,  searching  for  the  precious  metals 
that  lie  imbedded  in  the  earth  in  the  mineral  regions  of  the  State, 
have  certain  rights  that  need  protection,  as  well  as  other  classes. 
When  these  discoveries  are  made,  the  metalliferous  ores  cannot  be 
at  all  times  successfully  reduced  without  the  aid  of  expensive  ma- 
chinery, the  building  of  mills  to  be  propelled  by  water  power,  etc. 
Water  for  this  purpose  is  as  much  a  want  or  necessity  of  the  com- 
munity as  it  is  for  the  purpose  of  irrigating  the  land.  The  mining 
industry  of  this  State  has  always  been  considered  of  as  great 
importance  as  the  agricultural  interests.  The  right  to  the  water  of 
a  stream  for  any  beneficial  use  should  always  be  protected  and 
encouraged. ' ' 

4  Conger  v.  Weaver,  6  Cal.  548,  65       ditches.     But  see  infra,  sec.  528,  pol- 
Am.  Dec.  528,  1  Morr.  Min.  Rep.  594.       lution. 

10-  ^rMr  V'  Ar^f  etC^%rtC™  7  Montana  Co.  v.  Gehring,  75  Fed. 

39o,  J4  Morr.  Mm.  Kep.  371:  Ortman       QQ.    01  n   n    A     .,  . 

v.  Dixon,  13  Cal.  33.  84'  *J   L'  U  A'  414' 

6  Union   etc.    Co.   v.   Dangberg,   81  8  Windsor     Co.     v.     Hoffman     Co. 

Fed.    73.     The    California    irrigation  (Colo.,  1910),  109  Pae.  423;   Same  v. 

district  law  (Stats.  1897,  p.  254,  sec.  Same>  1]      Pac.  425. 

64)     expressly    denies   irrigation    dis-  9  Union  Mining  Co.  v.  Dangberg,  81 

tricts    any    preference    over    mining  Fed.  73.     Per  Judge  Hawley. 


324  (3d  ed.)     Pt.  IIL     THE  LAW  OF  PEIOB  APPROPRIATION.       §  308 


(3d  ed.) 

§  308.  Preferences. — In  a  number  of  States  the  recent  legis- 
lation, however,  has  departed  from  the  foregoing  rule  of  impar- 
tiality, and  uses  are  classified  .with  regard  to  scarcity,  or  where 
they  are  of  incompatible  character.  Usually,  domestic  use  is  to  be 
supplied  first;  second,  irrigation;  third,  other  uses.  In  Colorado 
this  preference  is  enforced  by  a  provision  that  if  water  appro- 
priated for  domestic  use  is  used  for  irrigation  to  any  extent  what- 
ever, it  is  a  misdemeanor.10  In  Idaho,  mining  (in  mining  districts) 
has  the  second  preference.  In  Wyoming,  in  1909,  an  elaborate 
series  of  preferences  was  enacted.  Preferences  appear  (with  varia- 
tions) in  the  statutes  of  Colorado,  Idaho,  Kansas,  Nebraska,  New 
Mexico,  Oregon,  Utah,  Wyoming,  and  probably  some  other  States.11 
(There  should  also  be  noted  the  provision  elsewhere  considered, 
giving  the  State  Engineer  power  to  reject  appropriations  "where 


10  See   Fulton  etc.   Co.   v.  Meadow 
etc.   Co.,  35   Colo.   588,  86   Pac.   748; 
3  M.  A.  S.,  1905  ed.,  sec.  2269a;  Rev. 
Stats.    1908,   sees.    3178,    3179;    Laws 
1891,   p.   402,   sec.   1;    Laws   1891,   p. 
403,  sec.  2. 

11  Arizona. — Rev.  Stats.,  c.  55,  sec. 
5,  giving  preference  to  irrigation. 

Colorado. — Const.,  art.  16,  sec.  6; 
3  M.  A.  S.,  3d  ed.,  2269a. 

Idaho. — In  the  Idaho  constitution, 
article  15,  section  3,  it  is  declared  that 
in  times  of  scarcity,  domestic  uses 
shall  be  supplied  first;  second,  mining 
(in  organized  mining  districts)  ;  third, 
agricultural;  and  fourth,  manufactur- 
ing. 

Kansas. — Gen.  Laws,  1909,  sec. 
4423. 

Nebraska. — Comp.  Stats.  1903,  sec. 
6541. 

New  '  Mexico. — "No  inhabitant  of 
said  territory  shall  have  the  right  to 
construct  any  property  to  the  impedi- 
ment of  the  irrigation  of  land  or 
fields,  such  as  mills  or  other  property 
that  may  obstruct  the  course  [i.  e., 
flow]  of  the  water;  as  the  irrigation 
of  the  fields  should  be  preferred  to  all 
others  [i.  e.,  to  all  other  uses]."  N. 
M.  Gen.  Laws  1880,  art. ,  sec.  2. 

Oregon. — Laws  of  1909,  chapter 
216,  section  47,  contain  some  prefer- 
ence to  municipal  purposes. 

Utah.— Laws  of  1905,  chapter  108, 
provided  the  prior  appropriator  shall 


always  be  supplied  in  full  before  a 
subsequent  appropriator  gets  any 
water,  except  in  the  annual  low-water 
stage,  when  all  users  are  on  an  equal 
footing,  and  pro-rate.  In  time  of 
scarcity,  domestic  uses  have  preference 
over  all  other  purposes,  and  agricul- 
ture over  all  except  domestic  use; 
those  using  for  the  same  purpose 
maintaining  priorities  between  them- 
selves (sec.  56).  And  this  is  pre- 
served in  the  later  statutes. 

Wyoming. — "Water-rights  are  here- 
by defined  as  follows  according  to 
use:  Preferred  uses  shall  include 
rights  for  domestic  and  transportation 
purposes  in  accordance  with  the  pro- 
visions of  the  law  relating  to  con- 
demnation of  property  for  public  and 
semi-public  purposes.  Such  domestic 
and  transportation  purposes  shall  in- 
clude the  following:  First,  water  for 
drinking  purposes  for  both  man  and 
beast;  second,  water  for  municipal 
purposes;  third,  water  for  the  use  of 
steam  engines  and  for  general  rail- 
way use;  fourth,  water  for  culinary, 
laundry,  bathing,  refrigerating  (in- 
cluding the  manufacture  of  ice),  and 
for  steam  and  hot-water  heating 
plants.  The  use  of  water  for  irriga- 
tion shall  be  superior  and  preferred  to 
any  use  where  turbine  or  impulse 
water-wheels  are  installed  for  power 
purposes."  Laws  1909,  c.  68,  p.  112, 
sec.  2;  Comp.  Laws,  1910,  sec.  725. 


§308  Ch.  14.     SENIOE  AND  JUNIOR  RIGHTS.         (3d  ed.)  325 

such  denial  is  demanded  by  the  public  interest,"12  which,  it  has 
been  claimed,  gives  him  power  of  choice  between  classes  of  uses.) 

These  provisions,  so  far  as  they  attempt  to  annihilate  the  doc- 
trine of  priority  between  classes  of  uses,  or  to  classify  uses  for 
the  purposes  of  priority,  are  not  fully  enforced  by  the  courts. 

The  preference  to  domestic  uses,  given  the  first  preference,  is 
held  in  Colorado  as  only  preserving  a  right  similar  to  the  common- 
law  riparian  right  of  each  riparian  proprietor  to  domestic  use  on 
his  land.  If  the  attempt  by  such  provision  were  to  defeat  prior 
appropriations  for  other  purposes  entirely  it  would  be  unconstitu- 
tional, as  a  prior  appropriation  has  a  vested  right  that  can  be  taken 
only  on  eminent  domain  proceedings  and  payment  of  compensa- 
tion.13 The  same  has  been  held  of  the  Nebraska  provision  14  and 
of  the  Idaho  provision.15  These  cases  hold  that  the  preference  to 
domestic  use  does  not  give  municipalities  the  right  to  take  water 
away  from  prior  appropriators  owning  rights  for  mining,  irriga- 
tion, power,  or  manufacturing. 

The  present  state  of  the  Colorado  law  appears  in  the  following 
cases :  A  water  company  purchased  the  water- rights  of  private 
parties  with  a  view  to  furnish  water  for  domestic  use,  and  relied 
for  priority  on  the  rights  of  their  grantors,  who  had  been  using  the 
water  for  domestic  use.  The  court  says:  "Upon  the  question  of 
the  right  of  appellees  to  divert  the  water  for  domestic  use,  based 
on  the  fact  that  their  grantors,  as  riparian  owners,  had  enjoyed 
such  use  since  their  first  settlement  upon  the  stream,  the  court 
below  held  that  such  claim  could  not  be  sustained,  and  -that  the 
right  to  use  the  water  for  such  purpose  must  be  exercised  in  con- 
nection with  riparian  ownership.  This  holding  is  in  accord  with 

12  Infra,  sees.  313,  314,  415.  was  permitted  to  the  riparian  pro- 
is  Strickler  v.  Colorado  Springs,  16  prietor  at  common  law,  which  ordi- 
Colo.  61,  25  Am.  St.  Rep.  245,  26  narily  involves  but  little  interference 
Pac.  317;  Armstrong  v.  Larimer  etc.  with  the  water  of  a  stream  or  its  flow. 
Co.,  1  Colo.  App.  49,  27  Pac.  235;  and  does  not  contemplate  diversion  of 
Montrose  etc.  Co.  v.  Loutsenhizer  etc.  large  quantities  of  water  in  canals  or 
Co.,  23  Colo.  233,  48  Pac.  532 ;  Broad-  pipe-lines.  Crawford  v.  Hathaway,  67 
moor  etc.  Co.  v.  Brookside  etc.  Co.,  Neb.  325,  108  Am.  St.  Rep.  647,  93  N. 
24  Colo.  541,  52  Pac.  792;  Town  of  W.  781,  60  L.  R.  A.  889.  See  Corpora- 
Sterling  v. .  Pawnee  etc.  Co.,  42  Colo.  tions  and  Consumers,  infra,  sees.  1343, 
421,  94  Pac.  341,  15  L.  R.  A.,  N.  S.,  1344  et  seq. 

238.  15  Montpelier  etc.  Co.  v.  Montpelier 

14  In  Nebraska  it  was  held,  citing  (Idaho,    1911),    113    Pac.    741.     The 

the  Colorado  cases,  that  in  the  prefer-  Wyoming  statute,  supra,  expressly  re- 

ence  to  domestic  uses,  the  term   "do-  quires  condemnation  and  payment  be- 

mestic  purposes"  has  reference  to  such  fore  the  preference  can  be  exercised, 
use  of  water  for  domestic  purposes  as 


326  (3d  ed.)     Pt.  III.     THE  LAW  OF  PRIOR  APPROPRIATION.       §  308 

the  views  expressed  in  the  recent  case  of  Montrose  Canal  Co.  v. 
Loutsenhizer  Ditch  Co-.,16  wherein  it  is  said :  '  While  it  is  true  that 
section  6  of  article  16  of  the  constitution  recognizes  a  preference 
in  those  using  water  for  domestic  purposes  over  those  using  it  for 
any  other  purpose,  it  is  not  intended  thereby  to  authorize  a  diver- 
sion of  water  for  domestic  use  from  the  public  streams  of  the  State 
by  means  of  large  canals The  use  protected  by  the  consti- 
tution is  such  use  as  the  riparian  owner  has  at  common  law  to  take 
water  for  himself,  his  family,  or  his  stock,  and  the  like. '  The  court 
therefore  correctly  decided  that  the  water  could  not  be  used  for 
such  purpose  by  the  company,  through  its  pipe-line. " 17  In  the 
latter  case  cited  in  the  note  the  court  said:  "Rights  to  the  use  of 
water  for  a  beneficial  purpose,  whatever  the  use  may  be,  are  prop- 
erty, in  the  full  sense  of  that  term,  and  are  protected  by  section 
15,  article  11,  of  our  constitution,  which  says  that  'private  prop- 
erty shall  not  be  taken  or  damaged  for  public  or  private  use  with- 
out just  compensation.'  ....  That  a  city  or  town  cannot  take 
water  for  domestic  purposes  which  has  been  previously  appro- 
priated for  some  other  beneficial  purpose,  without  fully  compensat- 
ing the  owner,  is  so  clear  that  further  discussion  seems  almost 
unnecessary.  Any  other  conclusion  would  violate  the  most  funda- 
mental principles  of  justice,  and  result  in  destroying  most  valuable 
rights.  It  would  violate  that  right  protected  by  our  constitution, 
that  property  shall  not  be  taken  from  the  owner  either  for  the 
benefit  of  the  public  or  for  private  use,  without  conpensation  to 
the  owner.  The  right  of  a  city  to  divert  water  for  the  use  of  its 
inhabitants  is  not  superior  to  the  right  of  an  individual,  or  a  farm- 
ing community,  to  divert  water  for  domestic  or  other  purposes,  in 
the  sense  that  the  city  may  take  water  for  that  purpose  from  those 
who  have  previously  appropriated  it  for  the  same,  or  some  other, 
beneficial  use,  without  compensating  the  senior  appropriator." 

The  effect  of  these  decisions  is  that  the  common  law  of  riparian 
rights  is  not,  after  all,  rejected  in  toto,  in  Colorado,  or,  rather, 
that  is  the  effect  if  the  provision  in  question  is  given  any  force 
at  all.18  As  yet  the  courts  have  only  been  engaged  in  cutting  down 

10  23  Colo.  233,  48  Pac.  532.  341,  15  L.  R.  A.,  N.  S.,  238,  and  the 

17  Broadmoor  Dairy  Co.   v.   Brook-  other  eases  already  cited. 

side  Water  Co.,  24  Colo.  541,  52  Pac.  18  The  provision  is  not  confined  to 

792.     Affirmed  in  Town  of  Sterling  v.  appropriators,  who  own  riparian  land. 

Pawnee  etc.  Co.,  42  Colo.  421,  94  Pae.  Town  of  Sterling  v.  Pawnee  etc.  Co., 


§308       .  .  Ch.  14.     SENIOR  AND  JUNIOR  RIGHTS.         (3d  ed.)  327 

that  provision,  and  that  is  where  the  cases  now  stop,  without  af- 
firmatively holding  that  the  common-law  right  exists,  but  only 
that  beyond  the  common-law  right  the  preference  does  not  go. 
It  may  be  that  the  court  will  hold  that  the  preference  does  not 
even  extend  to  the  common-law  right,  thus  in  effect  nullifying  the 
preference  entirely.19 

The  second  preference  in  Colorado,  given  to  irrigators,  was  held 
not  to  apply  to  rights  acquired  before  the  adoption  of  the  con- 
stitution.20 The  second  preference  in  Idaho  is  given  to  mining,  but 
the  court  has  held  that  this  does  not  give  the  miner  any  right  to 
pollute  the  stream  as  against  prior  appropriators  for  irrigation.21 

The  matter  is  not  of  recent  origin,  and  the  courts  find  such  pref- 
erences do  not  work  justice.  In  the  first  historical  chapter  it  was 
seen  that  a  preference  of  such  kind  in  favor  of  use  for  mining  was 
urged  when  the  foundations  of  the  doctrine  of  appropriation  were 
being  laid,  and  the  California  court  had  much  difficulty  in  over- 
coming it,  but  it  was  overcome.  And  it  was  fortunately  so,  for 
the  preference  then  would  have  become  fixed  for  mining,  to  the 
great  detriment  of  irrigation,  which  has  since  overshadowed  it, 
but  was  then  in  its  infancy.22  And  so  likewise  a  preference  to 
irrigation  to-day  will  prevent  the  growth  of  use  of  water  for 
generating  electric  power,  which  is  now  in  its  infancy.  The 
original  rule,  which  still  prevails  in  California  and  most  other 
jurisdictions,  of  impartiality,  is  better.1 

42  Colo.  421,  94  Pac.  341,  15  L.  R.  A.,  bill  has  passed  both  Houses  and  will 

N.  S.,  238.     In  Idaho  the  first  pref-  probably  be  signed  by  the  governor, 

erence     is     given     to     domestic     use.  20  Colorado  etc.  Co.  v.  Larimer  etc. 

Quaere,  what  is  the  bearing  of  that  QQ    26  Colo.  47,  56  Pac.  185. 

preference  upon  the  decision  in  Hut-  91   „.,,                                        _,        ,0 

chinson  v.  Watson  D.  Co.   (1909),  16  *  Hl»    v'  Jto£dardonea  c<  QC(\,12 

Idaho,  484,  133  Am.  St.  Rep.  125,101  *dah,°'    223>    8,5    *?.«:    9.09-     SfT   Mc- 

Pac     1059?     The   common   law   itself  Carthy^v.  Bunker  Hill  etc.  Co.  (Idaho, 

x^bandoning  the  TtSon  Ltwin  "08\ 164  *ed.  927,  92  C.  C   A   259; 

domestic  andg  other  use,     Infra,  se,  ^otl^iosV,  35?   <" 

19  By  the  Carpenter  Bill  with  Par-  22  See  Crandall  v.  Woods,  quoted 
rish  amendment  in  the  1911  Colorado  supra,  sees.  113,  114. 
legislature,  repeal  is  advocated  of  an  i  Elwood  Mead,  Chief  of  the  Irri- 
act  of  April  13,  1901  (Stats.  1901,  gation  and  Drainage  Investigations 
p.  194,  sec.  4),  giving  direct  irriga-  of  the  Department  of  Agriculture, 
tion  from  streams  a  preference  over  expressed  the  following  views  as  a 
storage  irrigation  from  reservoirs  witness  in  Kansas  v.  Colorado:  "The 
filled  from  the  stream,  the  preference  use  of  water  for  household  and  domes- 
being  considered  both  dangerous  and  tic  purposes  I  would  put  as  of  primary 
unconstitutional.  At  this  writing  the  importance.  After  that,  irrigation. 


328  (3d  ed.)     Pt.  in.     THE  LAW  OF  PRIOR  APPROPRIATION.       §  309 


(3d  ed.) 

§  309.  Pro-rating. — The  provisions  for  pro-rating,  in  times  of 
scarcity,  between  users  for  the  same  purpose  (e.  g.,  between  all 
irrigators)  have  also  given  much  difficulty.  Something  more  will 
be  said  of  this  hereafter.2  In  Colorado,  the  statute  provides  that 
water  commissioners  may  pro-rate  the  water  in  time  of  deficiency 
between  all  appropriators,  by  volume  or  by  time  of  use.3  Between 
consumers  from  the  same  ditch,  pro-rating  is  provided  in  times  of 
scarcity.4  The  Colorado  court  here  also  has  taken  its  stand  against 
these  modifications  of  the  doctrine  of  priority.  In  Farmers'  High 
Line  etc.  Co.  v.  Southworth,5  the  majority  of  the  judges  rendered 
opinions  that  the  "pro-rating  statute  of  1883,"  if  enforced  literally 
and  irrespective  of  the  priorities  of  the  several  appropriators,  was 
inhibited  by  the  constitution.6  That  appropriators  through  the 
same  ditch  may  have  different  priorities  has  been  frequently  held 
in  this  State.7  Consequently,  the  court 8  has  considered  it  stare 
decisis  that  there  may  be  circumstances  in  which  appropriators, 
even  though  through  the  same  ditch,  may  not  (even  by  statute) 
be  compelled  to  pro-rate  with  each  other.9 

In  an  action  where  the  right  to  pro-rate  is  claimed,  all  the 
parties  who  are  to  pro-rate  are  necessary  parties.10  A  con- 


I  would  put  irrigation  even  ahead  of 
its  use  for  power  where  its  use  for 
power  would  prevent  its  being  used 
for  irrigation,  because  you  can  provide 
your  power  in  some  other  way  and  you 
cannot  provide  food  in  any  other  way. 
I  would  put  irrigation  as  superior  to 
navigation,  because  of  the  far  greater 
value  that  you  can  get  out  of  the 
water,  and  because  navigation  is  the 
one  instance  of  the  use  of  water  where 
its  importance  instead  of  increasing 
is  diminishing."  In  the  1905-1906 
Report  of  the  State  Engineer  of 
Wyoming  it  is  suggested  by  the  Super- 
intendent of  Water  Division  No.  2 
that  whenever  the  right  to  use  water 
for  power  interferes  with  irrigation,  a 
way  should  be  provided  for  the  ap- 
praisement and  sale  of  the  power 
right.  And  the  Wyoming  statute  since 
passed  (above  quoted)  should  be  re- 
ferred to. 

2  Infra,  sec.  1343  et  seq. 

3  M.  A.  S.  2259,  2267. 

4  In  M.  A.  S.  2267. 

«  13  Colo.  Ill,  21  Pac.  1028,  4  L. 
R.  A.  767. 


6  Elliott,  J.,  thought  pro-rating  in- 
valid generally    (excepting  where  ap- 
propriators are  of  equal  date  or  have 
expressly  waived  priorities,  or  regard- 
ing    consumers     from     mutual     com- 
panies), and  this  is  probably  accepted 
as  the  law  of  the  case.     Helm,  C.  J., 
thought   the  invalidity   extended   only 
as  to  consumers  under  different  canals, 
and  valid  as  to  co-consumers  under  the 
same  canal;  but  Judge  Elliott's  opin- 
ion seems  to  have  prevailed. 

7  Nichols  v.  Mclntosh,  19  Colo.  22, 
34    Pac.    278;    Farmers'    Independent 
Ditch   Co.  v.   Agricultural   Ditch   Co., 
22  Colo.  513,  521,  55  Am.  St.  Rep.  149, 
45  Pac.  444;  Brown  v.  Farmers'  High 
Line  Canal  etc.  Co.,   26  Colo.   66,  56 
Pac.  183. 

8  In  Farmers'  etc.  Co.  v.  White,  32 
Colo.  114,  75  Pac.  416. 

9  See,  however,  Larimer  etc.  Co.  v. 
Wyatt,  23  Colo.  480,  48  Pac.  528. 

10  Brown    v.    Farmers'    High    Line 
Canal  etc.  Co.,   26   Colo.   66,   56   Pac. 
183;    Farmers'   etc.   Co.  v.  White,   32 
Colo.  114,  75  Pae.  416. 


§  310  Ch.  14.     SENIOB  AND  JUNIOR  EIGHTS.         (3d  ed  )  329 

tract  with  a  company  enforcing  pro-rating  will  be  upheld,  how- 
ever.11 

In  Utah,  primary  and  secondary  rights  are  by  statute  provided 
for,  the  latter  referring  to  unusual  increases  in  streams  and  the 
former  being  rights  in  ordinary  stages.12  In  Washington,  in  cases 
of  deficiency  of  supply,  a  statute  provides  that  the  courts  may  ap- 
point commissioners  to  make  an  equitable  apportionment  by  enforc- 
ing a  pro-rata  reduction  from  the  full  amount  appropriated.13 

The  question  of  pro-rating  is  further  considered  in  hereafter 
considering  consumers  from  distributing  companies.14 

C.     CORRELATIVE  RIGHTS  BETWEEN  APPROPRIATORS. 
(3d  ed.) 

§  310.  The  Principle  of  " Unreasonable  Priority." — That 
priority  and  beneficial  use  should  be  the  exclusive  test  between 
appropriators  has,  as  above,  always  been,  aside  from  statute  and  te 
some  extent  in  spite  of  statute,  the  established  rule.  Yet  there  has 
always  been  a  minority  current  of  authority  contending  that  the 
exclusiveness  of  a  prior  right  should  be  recognized  only  to  a 
certain  degree,  and  that  priorities  should  not  be  enforced  when 
to  do  so  would  be  "unreasonable"  to  water  users  upon  the  same 
stream,  though  subsequent  in  time  of  use.  It  is  this  minority 
current  of  authority  which  these  sections  will  set  forth  at  some 
length  in  substantially  the  form  in  which  the  writer  contributed 
it  to  the  Yale  Law  Journal,15  in  the  belief  that  this  modification 
of  the  rule  of  priority  is  of  importance,  especially  in  view  of  the 
demand  for  the  prevention  of  monopoly  and  the  conservation  of 
natural  resources,  recently  become  so  strong. 

(3d  ed.) 

§  311.     Some  Early  Rulings. — The    common   law  of    riparian 

rights  regards  all  riparian  proprietors  as  upon  an  equal  footing, 
giving  each  a  right  to  a  "reasonable"  use  of  the  stream  at  any 
time.  Their  rights  are  correlative,  and  no  one  of  them  can 

11  O'Neil  v.  Fort  Lyon  Co.,  39  Colo.  Marble  etc.  Co.,  15  Utah,  225,  49  Pac. 
487,  90  Pac.  849;'  Jackson  v.  Indian  892,  1119;  Salt  Lake  City  v.  Salt  Lake 
etc.   Co.    (1909),    16   Idaho,   430,    101  etc.  Co.,  25  Utah,  456,  71  Pac.  1069. 
Pac.  814,  110  Pac.  251.  «  Pieree's    Code,    sees.    5820-5824, 

12  2  Utah  Comp.  Laws,  1888,  sees.  5831. 

2775-2789.     As   to   primary   and   sec-  14  Infra,  sees.  1284,  1343  et  seq. 

ondary  rights  in  Utah,  see  Becker  v.          15  18  Yale  Law  Journal,  1.88. 


330  (3d  ed.)     Pt.  III.     THE  LAW  OF  PRICE  APPROPRIATION.       §  311 

use  the  water  in  any  manner  that  would,  under  all  the  sur- 
rounding facts  and  circumstances,  be  unreasonable  in  its  effect 
upon  the  capacity  of  use  by  the  others.16  The  California  legis- 
lature in  1850 17  had  adopted  the  common  law,  by  statute,  as 
the  general  rule  of  decision,  and  when  the  supreme  court  five 
years  later  began  to  i-ecognize  exclusive  rights  by  priority  in 
time  of  use,  it  was  in  some  quarters  accused  of  judicial  legisla- 
tion. These  are  matters  already  set  forth  at  length.18  This 
criticism  induced  in  some  of  the  judges  a  desire  to  reconcile  the 
new  decisions,  as  much  as  possible,  to  common-law  rules;  result- 
ing in  expressions  in  several  early  cases  that  the  rights  of  appro- 
priators  were  correlative  as  between  riparian  proprietors  at  com- 
mon law,  and  that  the  prior  appropriator  must  be  confined  to  a 
"reasonable"  use  as  determined  by  the  effect  of  his  use  upon  sub- 
sequent appropriators,  just  as  between  riparian  proprietors  at 
common  law. 

Conger  v.  Weaver  19  is  a  direct  reply  by  the  court  to  the  charge 
that  it  was  guilty  of  judicial  legislation.  It  declared  that  the 
common  law  had  not  been  departed  from;  that  the  common  law 
itself  was  merely  being  applied  to  new  conditions,  and  it 
expressly  declared  the  intention  of  the  court  to  apply  the 
common-law  rules  so  far  as  conditions  permitted.  The  court, 
after  saying,  "We  claim  that  we  have  neither  modified  its  rules, 
nor  have  we  attempted  to  legislate  upon  any  pretended  ground 
of  their  insufficiency,"  proceeds:  "That  new  conditions  and 
new  facts  may  produce  the  novel  application  of  a  rule  which 
has  not  been  before  applied  in  like  manner  does  not  make  it 
any  the  less  the  common  law,"  etc.  The  opinion  then  proceeds 
to  reconcile  the  new  decisions  to  -the  common  law  upon  a  point 
with  which  we  are  not  here  concerned ; 20  it  shows  the  desire 
which  immediately  arose,  among  some  members  of  the  court,  to 
depart  from  the  common  law  as  little  as  possible.21 

16  Infra,  sec.  745  et  seq.  posed  the  recognition  of  appropriation 

17  Stats.    3850,    p.    219,    now    Pol.  at  all  on  that  account,  and  dissented. 
Code.  sec.  4468.  Accordingly,  in  his  opinion  in  Hill  v. 

18  'Supra,  sec.  79  et  seq.  King,  8  Cal.  338,  4  Morr.  Min.  Rep. 

19  6  Cal.  548,  65  Am.  Dec.  528,  1  533,  he  practically  admits  the  charge 
Morr.  Min.  Rep.  594.  of   judicial   legislation,    and    enforces 

20  See  supra,  sees.  89,  90.  the     rule    of    priority    only    because 

21  The  Chief  Justice,  however,  was  bound  by  the  weight  of  cases  already 
not   convinced   that   the   reasoning   of  decided  against  his  own  opinion.     In 
the  case  was   an  answer  to  the  com-  doing    so,    he    says:    "If    the    parties 
plaint  of  judicial  legislation;   he  op-  both  claimed  as  riparian  proprietors, 


§  311  Ch.  14.     SENIOE  AND  JUNIOR  RIGHTS.         (3d  ed.)  331 

In  a  case  decided  soon  after,  the  court  said  it  had  applied 
"the  analogies  of  the  common  law,"  and  refused  an  action  to 
the  prior  appropriator  for  mining,  against  a  subsequent 
claimant  who  polluted  the  stream  in  legitimate  mining,  con- 
sidering it  unreasonable  for  one  miner,  under  the  claim  of 
priority,  to  withhold  the  stream  entirely  from  use  by  other 
miners.22 

Thereafter  the  early  California  decisions  twice,  in  important 
cases,  declared  the  doctrine  of  appropriation  as  conforming  to 
the  common  law  in  regard  to  the  requirement,  now  in  question, 
that  the  prior  use  must  be  "reasonable"  in  its  effect  upon  sub- 
sequent locators  (similar  to  the  correlative  rights  of  riparian 
owners)  and  not  exclusive  or  arbitrary.  In  Phoenix  W.  Co. 
v.  Fletcher23  the  law  was  said  to  be:  "The  rule  of  law  is  well 
established  that  the  owner  of  hydraulic  works  on  the  stream 
above  has  no  right  to  detain  the  water  unreasonably.  He  must 
so  construct  his  mill,  or  other  works,  and  so  use  the  water,  that 
all  persons  below  him,  who  have  a  prior  or  equal  right  to  the 
use  of  the  water,  may  participate  in  its  use  and  enjoyment  with- 
out interruption";  and  adds  that  all  appropriators  have  a  right, 
to  a  reasonable  use  of  the  water,  in  conjunction  with  appropriators 
below.  In  support  of  this  statement  of  the  law  of  appropriation 
the  court  cites  the  classical  authorities  upon  the  common  law 
of  riparian  rights — Angell  on  Watercourses  and  the  opinion  of 
Justice  Story  in  Tyler  v.  Wilkinson.24  Again,  in  Hill  v.  Smith  25 
the  court  speaks  of  the  "notion  which  has  become  quite  prevalent, 
that  the  rules  of  the  common  law  touching  water-rights  have 
been  materially  modified  in  this  State  upon  the  theory  that  they 
were  inapplicable  to  the  condition  found  to  exist  here,  and  there- 
then  each  alike  would  be  entitled  to  22  Bear  R.  Min.  Co.  v.  New  York 
the  reasonable  use  of  the  water  for  M.  Co.,  8  Cal.  327,  68  Am.  Dec.  325, 
proper  purposes,"  but  that  under  the  4  Morr.  Min.  Rep.  526.  Modifying 
new  rule  the  first  appropriator  must  Hill  v.  King,  supra,  decided  just  a 
be  held  entitled  to  the  exclusive  enjoy-  short  time  before,  though  the  rule  of 
ment,  which  he  need  not  share  with  Hill  v.  King  has  since  prevailed  as  a 
any  subsequent  claimant,  however  ex-  general  principle.  Conrad  v.  Arrow- 
tensive  might  be  the  prior  use.  As  head  etc.  Co.,  103  Cal.  399,  37  Pac. 
already  above  remarked,  this  is  the  386. 

general  rule  to-day.     The  Chief  Jus-  23  23  Cal.  486,  15  Morr.  Min.  Rep. 

tice   in   Hill  v.   King  used   the   word       185. 

"reasonable,"  but  only  with  reference  24  4    Mason,    401,    Fed.    Cas.    No. 

to  the  subsequent  claimant,  and  with-       14,312. 

out  any  attempt  to  place  such  a  re-          25  27  Cal.  481,  4  Morr.  Min.  Rep. 
etriction  on  the  prior  appropriator.  597. 


332  (3d  ed.)     Pt.  IIL     THE  LAW  OF  PRIOB  APPKOPKIATION.       §  312 

fore  inadequate  to  a  just  and  fair  determination  of  controversies 
touching  such  rights."  And  says:  "This  notion  is  without  any 
substantial  foundation.  The  reasons  which  constitute  the 
groundwork  of  the  common  law  upon  this  subject  remain  undis- 
turbed. The  conditions  to  which  we  are  called  upon  to  apply 
them  are  changed,  and  not  the  rules  themselves.  The  maxim, 
'Sic  utere  tiw  ut  alienum  non  laedas,'  upon  which  they  are 
grounded,  has  lost  none  of  its  governing  force;  on  the  contrary, 
it  remains  now,  and  in  the  mining  regions  of  this  State,  as 
operative  a  test  of  the  lawful  use  of  water  as  at  any  time  in  the 
past,  or  in  any  other  country.  This  maxim  is  one  which  every 
riparian  proprietor  is  bound  to  respect,  and  it  is  no  less  obligatory 
upon  those  who  use  and  divert  water  for  mining  purposes.  So 
that  in  all  controversies  like  the  present  the  question  to  be  deter- 
mined after  all  is  the  same  as  that  presented  by  a  like  controversy 
between  riparian  proprietors,"  etc.  The  rule  which  the  court  then 
lays  down  is  not  by  any  means  the  rule  of  the  common  law  of 
riparian  rights.  That  rule  of  correlative  use  is  that  "each  must 
submit  to  that  degree  of  inconvenience  and  hardship  in  the 
exercise  of  his  rights  which  results  from  the  existence  of  like 
rights  in  others, ' ' 1  and  instead  of  laying  dowrn  such  a  rule,  Hill 
v.  Smith  speaks  of  it  disparagingly  as  a  notion  which  "tolerates 
and  winks  at  some  uncertain  and  indeterminate  amount  of 
injury  by  the  one"  to  the  other.  Hill  v.  Smith  did  not  in  actual 
decision  attempt  to  restrict  the  exclusiveness  of  the  prior  right; 
its  language,  however,  in  the  above  passage,  is  nevertheless  a 
general  declaration  that  the  analogies  of  riparian  rights  should 
be  applied,  and  it  has  been  regarded  as  supporting  the  rule  that 
the  law  of  appropriation  should  be  made  to  conform  to  that  of 
riparian  rights  in  limiting  the  prior  appropriator  to  a  "reason- 
able" use  so  as  not  unreasonably  to  prevent  use  by  others  on  the 
arbitrary  claim  of  priority. 

(3d  ed.) 

§  312.  The  Dictum  in  Basey  v.  Gallagher. — These  early  Cali- 
fornia attempts  to  minimize  the  departure  of  the  law  of  appro- 
priation from  the  common  law  of  riparian  rights,  and  to  declare 
the  appropriator  limited  to  a  "reasonable"  use  correlatively  to 

l  Parker  v.  American  etc.  Co.,  195  Mass.  591/81  N.  E.  468,  10  L.  K.  A., 
N.  S.,  584. 


§312  Ch.  14.     SENIOE  AND  JUNIOR  BIGHTS.         (3ded.)  333 

the  use  of  subsequent  appropriators,  are  now  almost  forgotten. 
They  are  due  largely  to  the  reluctance  of  the  California  court  to 
admit  that  it  had  taken  upon  itself  to  set  up  an  entirely  new 
system  of  law.  To-day,  the  great  weight  of  authority  denies  the 
idea  that  there  can  be  an  "unreasonable"  priority,  because  of 
any  policy  favoring  subsequent  claimants.2  The  explanation  of 
the  above  cases  is  probably  historical,  as  an  attempt  to  controvert 
criticism,  rather  than  an  attempt  to  formulate  a  policy. 

Possibly,  however,  it  was  with  these  cases  in  mind  that  Mr. 
Justice  Field  (who  was  thoroughly  familiar  with  them,  having 
been  Chief  Justice  of  California,  though  not  having  sat  upon 
any  of  the  above  cases)  said  in  Basey  v.  Gallagher:3  "Water  is 
diverted  to  propel  machinery  in  flourmills  and  sawmills,  and  to 
irrigate  lands  for  cultivation  as  well  as  to  enable  miners  to  work 
their  claims;  and  in  all  such  cases  the  right  of  the  first  appro- 
priator,  exercised  within  reasonable  limits,  is  respected  and 
enforced.  We  say  within  reasonable  limits,  for  this  right  to  water, 
like  the  right  by  prior  occupancy  to  mining  ground  or  agri- 
cultural land,  is  not  unrestricted.  It  must  be  exercised  with 
reference  to  the  general  condition  of  the  country  and  the  neces- 
sities of  the  people,  and  not  so  as  to  deprive  a  whole  neighborhood 
or  community  of  its  use,  and  vest  an  absolute  monopoly  in  a 
single  individual." 

Mr.  Justice  Beatty,  in  Idaho,  now  judge  of  the  United  States 
district  court,  in  commenting  upon  this  passage,  reflects  what, 
as  said  above,  is  undoubtedly  the  general  law  to-day,  saying: 
"This  language  has  been  seized  upon  as  justifying  the  equitable, 
if  not  equal,  division  of  the  water  among  all  desiring  or  needing 
it,  regardless  of  the  claim  of  the  prior  appropriator.  Such  a 
construction  is  not  justified,  and  would  make  the  decision  incon- 
sistent with  itself  as  well  as  with  the  other  decisions  of  the  same 
court.4  It  is  evident  that  all  the  court  means  by  this  language 
is  that  the  first  appropriator  shall  not  be  allowed  more  than  he  needs 
for  some  useful  purpose ;  that  he  shall  not,  by  wasting  or  misusing 
it,  deprive  his  neighbor  of  what  he  has  not  actual  use  for.  In  98 

2  Lack   of  proof  of  facts  showing  3  87  U.   S.   670,   22  L.   Ed.   452,   1 

correlative   reasonableness   results   sua  Morr.  Min.  Rep.  683.     Italics  ours. 

sponte  in  remanding  a  cause  at  com-  •*  Citing  Jennison  v.  Kirk,  98  U.  S. 

mon    law,    but    is    wholly    immaterial  461,  25  L.  Ed.  240,  4  Morr.  Min.  Rep. 

under     the     law     of     appropriation.  504;   Broder  v.  Water  Co.,  101  U.  S. 

Hough  v.  Porter,  51  Or.  318,  95  Pac.  276,  25  L.  Ed.  790,  5  Morr.  Min.  Rep. 

782,  98  Pac.  1083,  102  Pac.  731.  33. 


334  (3d  ed.)     Pt.  III.     THE  LAW  OF  PRICE  APPROPRIATION.       §  312 

U.  S.  461,4a  supra,  the  court  says:  'The  owners  of  a  mining  claim 
and  the  owner  of  a  water-right  enjoy  their  respective  properties 
from  the  dates  of  their  appropriation — the  first  in  time  being  the 
first  in  right;  but  when  both  rights  can  be  enjoyed  without  inter- 
ference with  or  material  impairment  of  each  other,  the  enjoyment  of 
both  is  allowed.'  It  clearly  follows,  as  the  courts  have  certainly 
held,  that  when  all  cannot  use  the  water  without  injury  to  the  prior 
appropriator,  the  other  must  yield  to  his  superior  right."5  Mr. 
Kinney,  after  quoting  this  and  other  similar  authorities,  6  says : 
"From  these  authorities  it  is  apparent  that  the  rule  in  the  arid 
region  is  settled  that  a  prior  appropriator  can  take  the  waters 
of  a  stream  to  the  full  extent  of  his  original  completed  appro- 
priation, and  others  claiming  an  appropriation  in  the  waters 
subsequent  to  the  first  appropriation  cannot  devest  the  first  of 
his  rights,  even  if  the  first  diverts  all  the  water  of  the  stream, 
provided  he  applies  it  all  to  some  beneficial  use  or  purpose."7 
And  he  also  says:  "A  construction  of  the  sentence  from  Basey 
v.  Gallagher  quoted  above,  that  an  equitable,  if  not  an  equal, 
division  of  the  water  among  all  desiring  or  needing  it,  regardless 
of  the  claim  of  the  prior  appropriator,  was  intended,  cannot  be 
justified."8 

If  we  were  to  regard  the  contention  of  "reasonable  priority" 
to  rest  solely  on  the  few  early  California  attempts  to  establish 
it,  together  with  Basey  v.  Gallagher,  it  could  be  regarded  as  dis- 
carded. But  the  decisions  which,  as  a  whole,  so  firmly  hold  to 
the  exclusiveness  of  priority,  were  given  while  the  public 
domain  was  a  vast  unsettled  region,  and  rights  were  to  be 
adjusted  between  a  few  individuals  rather  than  whole  communi- 
ties. To-day  the  lands  have  been  far  more  fully  settled,  the  water 
users  on  many  streams  are  beginning  to  crowd  each  other,  and 
the  "exclusiveness"  rule  of  priority  comes  more  and  more  in  con- 
flict with  the  community  idea.  Justice  is  coming  more  and  more 
to  demand  an  equitable  co-relation  of  the  users  for  the  common 
good,  and  these  changed  conditions  have  caused  here  and  there 
revivals  of  the  idea  that  the  priority  must  be  reasonable,  all 
things  and  evidence  being  considered,  or  it  will  not  be  fully 
enforced. 

4a  25  L.  Ed.  240,  4  Morr.  Min.  Rep.  «  E.    g.,    Hillman    v.    Hardwick,    3 

504.  Idaho,  255,  28  Pac.  438. 

5  Drake  v.  Earhart,  2  Idaho,  750,  23  7  Kinney  on  Irrigation,  p.  369. 

Pae.  541.  8  Kinuey  on  Irrigation,  p.  390. 


§  313  Ch.  14.     SENIOR  AND  JUNIOR  RIGHTS.         (3d  ed.)  335 

(3d  ed.) 

§  313.     Recent  Tendencies. — This  is  likely  to   be   a   growing 

doctrine,  with  its  leading  authority  in  the  case  of  Union  Min. 
Co.  v.  Dangberg.9  This  opinion  was  written  by  the  late  Judge 
Hawley,  one  of  the  ablest  of  those  judges  who  had  grown  up 
with  the  West  from  pioneer  times.  In  a  previous  decision  while 
Chief  Justice  of  Nevada  he  had  said:  "The  law  which  recognizes 
the  vested  rights  of  prior  appropriators  has  always  confined  such 

rights    within    reasonable    limits What    is    a    reasonable 

use  depends  upon  the  peculiar  circumstances  of  each  particular 
case."10  This  he  applied  in  Union  Mining  Co.  v.  Dangberg,11 
when  later  judge  of  the  United  States  district  court  in  Nevada. 
In  that  case  he  decided  that  the  rights  of  the  many  water  users 
involved  could  be  adjusted  on  the  same  basis  as  though  they 
were  riparian  proprietors,  though  they  were  also  appropriators 
having  differing  priorities.  After  saying  that  courts  have,  in 
the  application  of  riparian  rules,  in  order  to  allow  all  riparian 
proprietors  "to  make  a  reasonable  use  of  the  water,"  decreed  a 
full  flow  for  a  definite  period  of  time  as  reasonable,  he  asks 
"Why  should  not  such  a  rule  be  followed  in  the  present  case?" 
Such  a  decree,  he  says,  promotes  peace,  prevents  litigation,  and 
substantially  reaches  the  end  of  justice.  "The  endless  complica- 
tions that  have  arisen  in  this  case,  the  exigencies  and  necessities 
of  the  parties,  as  well  as  the  number  of  parties  involved,  justify 
this  court  in  adopting  this  rule."  He  accordingly  decrees  to 
defendants  at  all  times  use  for  domestic  purposes,  to  complain- 
ant a  full  flow  of  six  thousand  inches  of  water  to  run  its  seven 
mills  except  during  the  irrigation  season,  during  which  season 
the  defendants  (irrigators)  may  take  the  whole,  if  necessary. 
This  decree  thus  placed  all  the  one  hundred  and  twenty -six  defend- 
ants on  the  same  footing  against  complainant,  though  complain- 
ant was  prior  in  his  appropriation  to  some  of  them,  and 
subsequent  in  time  to  others;  and  gave  complainant  a  "reasonable" 
use  of  the  river  for  all  its  seven  mills  taken  together,  though 
each  mill  had  a  different  priority  as  against  different  defendants; 
and  it  gave  to  all  subsequent  appropriators  a  right  to  domestic 
use  against  the  complainant,  though  complainant  was,  as  to  most 
of  them,  the  prior  appropriator.  The  result  practically  ignores 

9  81  Fed.  73.  language  of  the  common  law  of  ripa- 

10  Barnes  v.  Sabron,  10  Nev.  243,  4       rian  rights. 
Morr.    Min.    Rep.    673.     This    is    the  n  81  Fed., 73. 


336  (3d  ed.)     Pt.  III.     THE  LAW  OF  PEIOE  APPROPRIATION.       §  313 

priorities,  and  proceeds  on  independent  lines  simply  to  settle 
equitably  and  upon  moral  fairness  the  conflict  between  the  mill 
community  and  the  irrigation  community.  That  such  a  "reason- 
able" result,  fair  to  all,  was  warranted  by  the  common  law  of 
riparian  rights  between  riparian  proprietors,  as  Judge  Hawley 
first  points  out,  would  seem  clear  enough  as  the  doctrine  of 
riparian  rights  is  understood  in  the  West;  but  it  is  reached  under 
the  law  of  appropriation  only  by  refusing  to  accept  the  details 
of  what  took  place  in  the  fifties  and  sixties,  when  Nevada  was 
sparsely  settled,  as  measuring  (on  the  principle  of  priorities) 
what  would  be  just  when  the  lands  had  been  settled  up  after  the 
lapse  of  a  generation.12 

Judge  Morrow,  of  the  United  States  appellate  court  for  the  ninth 
circuit,  has  accepted  this  as  his  rule  of  decision.  In  Anderson 
v.  Bassman  13  he  refers  to  Judge  Hawley 's  opinion  as  controlling. 
A  large  community  of  water  users  on  a  stream  lying  in  both  Cali- 
fornia and  Nevada  was  involved,  some  claiming  riparian  rights 
under  the  common  law  of  riparian  rights  as  in  force  in  California 
except  for  appropriations  on  public  lands,14  some  claiming  as 
public  land  appropriators  in  California  under  the  law  for  such 
appropriations  also  recognized  there,15  and  others  claiming  in 
Nevada  as  appropriators  under  the  law  of  appropriation  as  the 
sole  law  recognized  in  Nevada.16  To  have  attempted  to  sift  out 
the  priorities  in  this  seething  mass  of  conflicting  rights  would 
have  been  an  immense  task,  and  would  have  resulted  in  prefer- 
ences to  some  over  others;  wherefore  Judge  Morrow  ignored 
priorities  and  proceeded  simply  to  an  equitable  apportionment 
among  all,  declaring  that  under  the  law  of  appropriation,  just 
as  well  as  that  of  riparian  rights,  the  use  must  be  "reasonable." 
It  certainly  reached  a  just  result,  and  the  only  practical  one, 
though,  as  has  been  said,17  it  does  so  only  by  curtailing  what  has 

12  In  Mexico,  when  there  is  insuffi-  anzas  de  Tierras  y  Aguas,  sec.  2,  p. 

cient   water   to   supply   the   irrigation  138.                         , 

rights    obtained    by    grant    upon    the  13  140  Fed.  14. 

public  domain,  the  rule  is:   "In  such  14  Lux  v.  Haggin,  69  Cal.  255,  10 
cases,  that  which  appears  to  be  more  Pac.  674.     Supra,  sec.  115. 
just  and  equitable  is  to  disregard  the  15  Ibid.     That    is,    rights    obtained 
respective  antiquity  of  the  grants,  and,  while  the  stream  still  flowed  over  pub- 
considering  them  equal,  to  proceed  to  lie  land,  and  before  private  title  had 
make   a   pro   rata  division,   either   by  attached  to  the  bordering  lands, 
days  or  by  nights,  or  by  days  by  turn,  16  Supra,  sec.  118. 
so  that  the  profit  and  loss  shall  remain  17  19    Harvard    Law    Review,    475, 
equally  divided  among  them."     Orden-  note. 


§313  Ch.  14.     SENIOR  AND  JUNIOR  EIGHTS.         (3ded.)33? 

hitherto  been  the  doctrine  of  appropriation,  in  order  to  reach  jus- 
tice among  large  communities. 

In  his  opinion,  Judge  Morrow  said:  "Whether  the  water  is 
taken  from  the  stream  in  California  by  the  riparian  owner  for 
the  purpose  of  irrigation,  or  is  taken  from  the  stream  in  Nevada 
by  the  appropriator  for  the  same  purpose,  the  right  is  equally 
sanctioned  by  law  and  is  subject  to  the  same  limitations;  that  is 
to  say,  the  right  to  use  the  water  from  the  stream  for  irrigation 
purposes  in  either  State  under  either  right  must  be  a  reasonable 
use,  to  be  determined  by  the  circumstances  of  each  case,  and  with 
due  regard  to  the  rights  of  others  having  the  same  beneficial  use 
in  the  water  of  the  stream."  Then  follows,  as  a  statement  of 
the  rights  of  the  Nevada  appropriators,  a  quotation  from  Union 
Min.  Co.  v.  Dangberg  setting  forth  the  correlative  rights  of 
riparian  owners.  Judge  Morrow  then  says:  "But,  in  the  view 
I  take  of  this  case,  the  question  of  priority  in  the  rights  acquired 
by  the  original  settlements  along  the  river  is  not  of  great  impor- 
tance." He  concludes:  "The  right  of  each  is  to  have  a  reasonable 
apportionment  of  the  water  of  the  stream  during  the  season  of 
the  year  when  it  is  scarce."  18 

Judge  Morrow  has  since  handed  down  another  opinion  on 
the  same  lines  from  the  United  States  circuit  court  of  appeals,15 
in  a  case  arising  in  Idaho,  where  appropriation  is  the  sole  law 
of  waters.  He  says  that  appropriation  does  not  give  an  exclusive 
right,  but,  to  prevent  monopoly,  an  equitable  and  reasonable  use 
and  adjudication  must  be  made.  The  prior  appropriation  of  the 
whole  stream  to  run  a  current-wheel  was  disallowed  against  a 
subsequent  appropriation  for  the  irrigation  of  a  large  community, 
saying  that  the  preservation  of  a  large  river  to  run  a  single 
appropri-ator's  current- wheels  would  be  highly  unreasonable  when 
it  deprives  vast  regions  of  the  right  to  irrigate.  This  may  be 
good  common  law  as  to  riparian  proprietors,  as  understood  in  the 
West,  none  of  whom  can  exclude  other  riparian  proprietors 
entirely  from  reasonable  use  of  the  stream  for  irrigation;  but  it 
practically  dissolves  the  law  of  appropriation  in  the  law  of 
riparian  rights.  In  support  of  his  opinion  Judge  Morrow  quotes 

18  Decreed,    plaintiffs    to    have    the  19  Schodde  v.  Twin  Falls  L.  &  W. 

full  flow  five  days  in  every  ten  during       Co.,  161  Fed.  43,  88  C.  C.  A.  207. 
June  to  October;   defendants  to  have 
the  water  during  the  other  five  days. 
Water  Bights — 22 


338  (3d  ed.)     Pt.  III.     THE  LAW  OF  PRIOR  APPROPRIATION.       §  313 

the  passage  from  Basey  v.  Gallagher  above  given,  and  also  a  case 
in  Montana  to  the  same  effect,20  that  there  should  be  an  "equita- 
ble" division  among  appropriators  in  spite  of  priorities. 

Beside  this  tendency  in  some  judicial  quarters,  the  recent 
"Water  Code"  legislation  also  seems  to  have  some  tendency  in 
this  direction.  We  have  already  referred  to  statutes  enforcing 
pro-rating  of  loss  in  dry  seasons.  Moreover,  the  Wyoming  con- 
stitution provides:21  "Priority  of  appropriation  for  beneficial 
uses  shall  give  the  better  right.  No  appropriation  shall  be  denied 
except  when  such  denial  is  demanded  by  the  public  interests." 
There  was  much  debate  over  this  section  in  the  constitutional 
convention.  Not  over  the  clause  we  have  italicized,  but,  on  the 
contrary,  over  the  first  clause,  because,  it  was  argued,  it  laid  too 
great  a  stress  on  priority.  For  example :  ^  "If  this  section  is 
adopted,  it  seems  perfectly  clear  to  me  that  no  other  considera- 
tion can  matter  or  can  be  employed  to  aid  in  determination  of 

rights I  believe  it  [priority]  should  properly  be  the 

greater  consideration,  but  to  allow  nothing  else  to  determine,  I 
think  this  is  an  extraordinary  decision,"  and  said  all  the 
"equities"  should  also  be  considered  in  each  case.  In  reply, 
among  other  things,  it  was  said:  "To  provide  that  priority  of 
appropriation  shall  not  give  the  better  right,  but  that  other  matters 
shall  come  in,  is  simply,  sir,  to  throw  this  matter  into  the  courts." 
This  debate  indicates  the  prevailing  sentiment  (and,  as  already 
said,  the  prevailing  rule  of  law)  that  the  courts  shall  have  no 
discretion  in  restricting  the  force  of  priority,  but  the  last  clause 
of  the  section  certainly  seems  an  adoption  of  the  contrary  rule. 

Under  the  common  law  of  riparian  rights  the  ultimate  test  in 
each  case  is  what  is  reasonable  under  all  the  circumstances.  Each 
case  practically  comes  down  to  the  discretion  of  court  or  jury 
deciding  what  is  reasonable  upon  the  entire  evidence.  The  rulings 
of  the  courts  above  referred  to  are  likewise  shaping  the  law  of 
appropriation  into  a  discretionary  system,  with  power  in  the 
Chancellor  to  apply  his  ideas  of  fairness  whenever  priorities 
would  work  injustice  because  of  complication  of  the  history  of 

20  Fitzpatrick    v.    Montgomery,    20  Co.    (Idaho,  1908),  164  Fed.  927,  92 

Mont.  181,  187,  63  Am.  St.  Rep.  622,  C.  C.  A.  259. 

50  Pac.  416,  417.     See,  also,  Farmers'  21  Article  8,  sec.  3. 

Irr.  Dist.  v.  Frank,  72  Neb.  136,  100  22  Journal     and     Debates     of     the 

N.  W.   286;    Salt  Lake   City  v.    Salt  Wyoming    Constitutional    Convention, 

Lake  etc.  Co.,  25  Utah,  456,  71  Pac.  pp.  534,  535. 
1069;    McCarthy  v.   Bunker  Hill   etc. 


§314  Ch.  14.     SENIOE  AND  JUNIOR  RIGHTS.         (3ded.)  339 

claims,  or  because  of  selfish  results  of  enforcing  them.  Though  it 
is  a  weakening  of  the  strict  rule  of  priority  and  contrary  to  the 
general  rule  to-day,  yet  this  principle,  which  might  be  called  "the 
principle  of  unreasonable  priority,"  is  likely  to  be  a  growing 
doctrine  as  the  irrigated  regions  become  more  closely  settled.23 

(3d  ed.) 

§  314.  Same. — Among  the  results  of  the  foregoing  modifica- 
tion of  the  law  would  be  the  enforcement  of  pro-rating  among 
appropriators  in  times  of  scarcity;  the  settlement  of  controversies 
in  many  cases  by  enforcing  rotation;  the  conservation  of  natural 
resources  by  preventing  monopoly;  and  a  general  equality 
(instead  of  priority)  of  right  among  the  members  of  the  water- 
using  community.  For  unsettled  regions  it  Is  not  applicable, 
just  as  the  common  law  of  riparian  rights  is  there  inapplicable; 
but  for  the  settled  regions  it  has  its  advantages.  In  settled 
regions  it  would  bring  the  systems  of  appropriation  and  riparian 
rights  much  together,  the  chief  remaining  difference  in  such 
regions  being  that  under  the  latter  the  water  users  would  all  lie 
within  the  same  valley,  while  under  the  former  they  would  be 
a  mixture  of  valley  and  nonvalley  users.  But  under  both  sys- 
tems the  chief  test  of  use  would  be  what  is  reasonable  for  each 
user  consistently  with  equal  rights  for  all,  rather  than  prior  rights 
for  some.24 

23  Judge  Morrow  has  expressed  to      provide  for  the  fluctuating  discharge 
the  writer  his  approval  of  the  forego-       of    the    stream    from    year    to    year, 
ing  presentation.  Plainly,    all    people     who     have     for 

The  matter  of  rejecting  appropria-  several    years     been    able    to     divert 

tions  if  demanded  by  the  "public  in-  water   from   a   stream   and   who   have 

terest,"     following    Wyoming,    is     in  made  valuable   improvements  depend- 

f  orce  in  other  States.     See  Young  v.  ent  thereon  should  be  protected  by  the 

Hinderlider   (N.  M.),  110  Pac.  1045.  law  in  the  continued  use  of  the  waters. 

See,  also,  S.  D.   Stats.   1907,  c.  180,  When,    however,    times    of    shortage 

sec.  23.     See  infra,  sec.  415.  occur,  it  is  manifestly  unjust   to  cut 

24  Commenting    upon    this    matter,  off  from  the  use  of  this  water  supply 
Mr.  Morris  Bien,  of  the  Federal  Rec-  those  who  have  valuable  property  de- 
lamation  Service,  says:  pendent  thereon  if  there  is  any  means 

"The   principle    of    priority   of   ap-  of  preventing  it. 

propriation  was  of  great  value  in  or-  "A  system  of  rotation  in  the  use  of 

der    to    establish    the    idea    that    no  the  water  will  enable  all  parties  to  get 

greater  appropriation  of  water  should  sufficient    for    all    their    actual    needs 

be    allowed    upon    any    stream    than  when    the    application    of   the   strict 

could    be    reasonably    met    from    the  rule  of  priority  might  deprive  a  num- 

water  supply  available  in  that  stream.  ber  of  the  water  needed  to  preserve 

The  adoption   of   laws   tending'  to   so  their    investments.     The    system    of 

limit  appropriations  was  the  first  im-  rotation  in  the  use  of  water  has  been 

portant    step.     When    this    is    accom-  adopted  in  many  irrigation  communi- 

plished    the    next    step    will    be    to  ties,    and    the    law    must    necessarily 


340  (3d  ed.)     Pt.  III.     THE  LAW  OF  PRIOR  APPROPRIATION.       §  315 

(3d  ed.) 

§  315.  Conclusions. — (a)  Successive  appropriators  are  inde- 
pendent and  priority  governs,  on  the  one  hand;  on  the  other, 
the  surplus  over  the  prior  appropriation  vests  in  the  later  appro- 
priator.  Each  appropriator  is  a  prior  one  as  against  all  who  are 
subsequent  to  him,  and  has,  against  the  subsequent  ones,  an  exclu- 
sive right  to  have  the  stream  flow  for  his  use  to  the  extent  of  his 
appropriation. 

(b)  The  general  rule  is  against  modifying  the  force  of  priority 
either  in  times  of  scarcity  or  where  it  extends  to  a  whole  stream, 
or  under  any  other  circumstances;  but  statutes  and  decisions 
show  an  increasing  tendency  to  some  modification. 

recognize  this  principle  in  order  to  there  was  so  much  else  of  importance 
secure  to  all  parties  their  proportional  at  stake  that  should  be  accomplished 
rights  in  the  streams.  In  many  cases  first.  My  idea  was  that  in  time  when 
if  the  use  of  the  water  is  rotated,  valuable  interests  had  grown  up  to  the 
there  would  be  ample  for  all  the  water  limit  of  the  available  water  supply 
users,  while  in  cases  of  extreme  short-  the  courts  would  not  permit  the  de- 
age  the  agricultural  improvements  of  struction  of  these  interests  merely  to 
all  could  be  preserved  from  destruc-  enforce  rigidly  a  theoretical  plan  of 
tion.  The  rigid  doctrine  of  priority  water  division  when  a  modification 
involves  too  much  the  idea  of  a  based  upon  reasonable  use  in  propor- 
monopoly  to  be  fostered  by  decisions  tion  to  the  several  interests  would  pre- 
of  our  courts,  and  must  undoubtedly  serve  them  all." 

in  time  give  way  to  a  distribution  of  Similar  views  were  expressed  by  Mr. 

the  water  that   shall   preserve  all   in-  Bien  in  a  paper  before  the  National  Ir- 

terests  in  the  most  practical  manner.  rigation  Congress  of  1909,  in  Spokane, 

"In  drawing  up  my  water  code  it  did  Washington,      as     elsewhere     quoted, 

not  seem  wise  to  force  this  idea,  as  Supra,  sec.  140. 

§§  316-317.     (Blank  numbers.) 


318  Ch.  15.     WHO  CAN  APPEOPBIATE.  (3d  ed.)  341 


CHAPTER  15. 

WHO  CAN  APPROPRIATE. 

§  318.  Persons  generally. 

§  319.  Trespassers. 

§  320.  Tenants  in  common. 

§  321.  Same. 

§  322.  Riparian  owners. 

§  323.  Early  riparian  settlers  in  California. 

§  324.  Same. 

§  325.  Corporations. 

§  326.  Appropriations  by  the  United  States. 

§§  327-330.     (Blank  numbers.) 

(3d  ed.) 

§  318.  Persons  Generally. — There  is  no  restriction  respecting 
the  persons  who  can  appropriate. 

"The  silent  acquiescence  with  which  the  government,  prior  to 
the  act  of  Congress  of  July  26,  1866,  regarded  the  appropriation 
of  water  on  its  lands,  as  well  as  the  express  recognition  extended 
by  that  statute  to  rights  so  acquired,  did  not  discriminate  between 
Trojan  and  Tyrian — citizens  and  aliens ;  married  women  and 
minors  were,  in  general,  not  competent  to  pre-empt  land,  but  we 
have  never  heard  that  they  might  not  make  a  valid  appropriation 
of  water;  the  tests  of  such  appropriation  were  priority  of  posses- 
sion and  beneficial  use ; 1  and  title,  or  the  right  to  acquire  title,  in 
the  place  of  intended  use  has  never  been  a  necessary  element  in 
the  ownership  of  appropriated  water.  Besides,  since  the  prior 
appropriation  of  water  is  a  mode  of  acquiring  a  right  in  real  prop- 
erty by  purchase,2  the  alienage  of  the  defendant  was  a  matter  be- 
tween him  and  the  government,  and,  if  it  were  admitted  that  as 
against  the  government,  he  could  have  no  valid  right  in  the  water, 
yet  until  'office  found,'  it  is  conceived  that  private  individuals  were 
not  at  liberty  to  treat  his  appropriation  as  void  of  effect,  or  the 
water  itself  as  still  open  to  another  to  take. "  3  In  the  case  from 

i  Citing  Maeris  v.  Bicknell,  7  Cal.  2  Citing   Hill   v.   Newman,   5   Gal. 

261,  68  Am.  Dec.  257,  1  Morr.  Min.  445,  63  Am.  Dee.  140,  4  Morr.  Min. 

Eep.  601;  Davis  v.  Gale,  32  Cal.  26,  Rep.  513. 

91  Am.  Dec.  554,  4  Morr.  Min.  Rep.  3  Citing   Norris   v.   Hoyt,    18    Cal. 

604;   De  Necochea  v.  Curtis,  80  Cal.  217;  Racouillat  v.  Sansevain,  32  Cal. 

397,  20  Pac.  563,  22  Pac.  198.  376;  Lobdell  v.  Hall,  3  Nev.  516. 


342  (3d  ed.)     Pt.  III.     THE  LAW  OF  PRIOR  APPROPRIATION.       §  319 

which  this  is  quoted4  appropriation  by  an  alien  was  held  good.5 
A  lessee  of  land  may  be  an  appropriator  of  water  for  irrigating 
that  land.6  So  may  "a.  mere  squatter  or  lessee  or  other  person  in 
possession."7 

(3d  ed.) 

§  319.  Trespassers. — So  far  as  water  is  concerned,  appropria- 
tions may  be  made  by  trespassers  upon  public  land;  which,  in 
fact,  is  the  way  the  law  of  appropriation  arose.8  Title  to  the 
place  of  use  is  immaterial.9  The  same  is  true  of  a  ditch  on  public 
land  so  far  as  the  United  States  (or  a  patentee  of  the  United 
States)  is  not  a  party  to  the  suit ;  and  even  against  them  also  so 
far  as  the  act  of  1866  remains  in  force.10 

So,  likewise,  appropriations  can  be  made  by  trespassers  on 
private  land.  If  the  water  also  belongs  to  another,  the  tres- 
passer has  an  "appropriation"  only  in  the  sense  that  nobody  but 
the  true  owner  can  dispute  his  use ;  u  but  it  is  not  an  ' '  appropria- 
tion" against  the  true  owner,  since,  for  example,  the  use  of 
water  upon  land  to  which  it  is  already  appurtenant  before  the 
trespass  will  not  dissever  the  water  from  the  land,  nor  confer 
any  right  in  the  trespasser  to  divert  it  or  sell  it  after  being 
lawfully  ejected  from  the  land.12  But  if  the  trespass  is  only  upon 
the  land  (the  water  itself  being  open  to  appropriation,  as  flowing 
over  public  land,  for  example,  and  carried  by  the  trespasser  to 
the  land  trespassed  upon),  then  the  water-right  belongs  to  the 
trespasser  absolutely.  Such  appropriations  carried  to  private  land 
of  another  by  trespassers  do  not  make  such  water-right  appurte- 

4  Santa    Paula    Water    Works    v.  citing    Rowland    v.    Williams,    23    Or. 
Peralta,  113  Cal.  38,  43,  45  Pac.  168.  515,  32  Pac.  402;  Seaweard  v.  Pacific 

5  Accord,  Lobdell  v.  Hall,  3  Nev.  L-  Co.,^49  Or.  157,  88  Pac.  963. 
507,  upholding  appropriation   by  an  s  Supra,  sec.  82. 

Indian;     Quigley     v.     Birdseye,     11 

Mont.  439,  28  Pac.   741,   743,  appro-  9  Supra,   sec.    281.     This   is   a   dif- 

priation  by  a  Chinaman.     See  Long  ierent  question  from  how  far  a  tres- 

on  Irrigation,  sec.  35;  Kinney  on  Ir-  Passer  can  be  regarded  as  a  riparian 

rigation,  sees.  154,  155.  proprietor,    m    which    case    the    land 

TV.             oo   -\/r      i    IK  right  is  m  question.     Supra,  sec.  261; 

6  Sayre   v.  Johnson,  33   Mont.   15,  •  y               fy. 

81  Pac.  389 ;  Seaweard  v.  Pacific  etc. 

Co.,  49  Or.  157,  88  Pac.  963;  Cooper  °  Infra>  sec-  439- 

v.  Shannon,  36  Colo.  98,  118  Am.  St.  n  Supra,    sec.    246,    appropriations 

Rep.  95,  85  Pac.  175  (dictum).  by  disseisin. 

7  Hough  v.   Porter,  51   Or.  318,  95  ^  Alta  etc.  Co.  v.  Hancock,  85  Cal. 
Pac.  732,  98  Pac.  1083,  102  Pac.  728,  219,  20  Am.  St.  Rep.  217,  24  Pac.  645. 


§320 


Ch.  15.     WHO  CAN  APPROPRIATE. 


(3ded.)  343 


nant  to  the  land  upon  which  it  is  so  used.13    The  trespasser  can 
change  the  use  to  other  real  property.14 


(3d  ed.) 

§  320.  Tenants  in  Common. — Where  several  join  in  making 
an  appropriation,  they  will  usually  be  tenants  in  common  of  the 
water-right.15  There  is  this  peculiarity  arising  out  of  such  a 
tenure,  that  the  water-right  is  held  not  to  be  in  its  nature  subject 
to  actual  partition;  and  on  a  partition  suit  the  only  separation 
of  the  interests  of  the  tenants  in  common  that  can  be  made  is 
by  ordering  a  sale  and  a  division  of  the  proceeds.16 

Where  two  join  in  a  diversion,  but  are  to  use  the  water  on  their 
separate  lands,  it  has  been  held  that  there  is  not  such  unity  of 
user  as  will  constitute  tenancy  in  common.17 


13  Smith  v.  Logan,  18  Nev.  149,  1 
Pac.  678,  approved  in  Alta  etc.  Co.  v. 
Hancock,  85  Cal.  219,  20  Am.  St.  Rep. 
217,   24  Pac.   645.     As   to   appropria- 
tions by  a  "mere  interloper"  against 
a   riparian   owner,   see    Hutchinson   v. 
Watson   D.    Co.,    16   Idaho,    484,    133 
Am.  St.  Rep.  125,  101  Pac.  1059,  and 
Sternberger    v.    Seaton    etc.    Co.,    45 
Colo.  401,  102  Pac.  168. 

14  Seaweard  v.  Pacific  etc.  Co.,  49 
Or.  157,  88  Pac.  963. 

"Even  trespassers  upon  land  may 
acquire  the  exclusive  right  to  the  use 
of  water  that  is  used  either  to  irrigate 
such  land  or  is  used  thereon  for  other 
purposes,  and  such  a  right,  when  once 
acquired,  is  paramount  to  the  rights 
of  the  true  owner  or  claimant  of  the 
land,  and  the  water  claimant,  when  he 
is  dispossessed  of  the  land,  may  di- 
vert and  use  the  water  elsewhere  than 
on  the  land  if  he  can  so  divert  and 
use  it."  Patterson  v.  Ryan  (Utah, 
1910),  108  Pac.  1118,  citing  the  sec- 
ond edition  of  this  book.  Compare 
Snyder  v.  Colorado  etc.  Co.  (Colo.  C. 
C.  A.),  181  Fed.  62.  Contra,  Avery  v. 
Johnson  (Wash.),  109  Pac.  1028. 

15  Abel   v.   Love,    17    Cal.    233,    11 
Morr.    Min.    Rep.    350;     Bradley    v. 
Harkness,  26  Cal.  69,   11  Morr.  Min. 
Rep.  389;  Lytle  Creek  etc.  Co.  v.  Per- 
dew,  65  Cal.  447,  4  Pac.  426;  Frey  v. 
Lowden,    70    Cal.    550,    11    Pac.    838; 
Or'seza  v.  Terwilliger,  144  Cal.  456,  77 
Pac.  1034;  Moss  v.  Rose,  27  Or.  595, 


50  Am.  St.  Rep.  743,  41  Pac.  666; 
Games  v.  Dalton  (Or.),  110  Pac.  170; 
and  see  Cal.  Civ.  Code,  sec.  842. 

As  to  partnership  in  water-rights,  cf . 
Beckwith  v.  Sheldon,  154  Cal.  393,  97 
Pac.  867 ;  Bradley  v.  Harkness,  supra. 

16  McGillivray  v.  Evans,  27  Cal.  92, 
11   Morr.    Min.   Rep.   209;    Lorenz   v. 
Jacobs,  59  Cal.  262;  Long  on  Irriga- 
tion,  sec.    75.     The    cases   here    cited 
laid  stress  upon  the  fact  that  the  ap- 
propriation was  for  mining.     In  a  re- 
cent case,  Verdugo  W.  Co.  v.  Verdugo 
(1908),   152   Cal.   655,   93   Pac.   1021, 
dealing    with    irrigation    and    with    a 
riparian    right,    actual    partition    and 
apportionment    were    upheld.     As    to 
which    see,  also,  Rose  v.  Mesmer,  142 
Cal.  322,  75  Pac.  905.     Compare  infra, 
sec.  751,  apportionment  between  ripa- 
rian   owners.     McGillivray    v.    Evans 
has  been  cited  approvingly  in  Lanfers 
v.  Henk.  73  111.  411,  24  Am.  St.  Rep. 
267,  5  Morr.  Min.  Rep.  67;  Allard  v. 
Carleton,   64   N.   H.    25,   3   Atl.   313; 
Brown   v.    Cooper,   98    Iowa,   455,    60 
Am.  St.  Rep.   197,  67  N.  W.  378,  33 
L.  R.  A.  61 ;   Head  v.  Amoskeag  Co., 
113  U.  S.  9,  5  Sup.  Ct.  Rep.  441,  28 
L.  Ed.  889. 

Suits  for  partition  of  mines  likewise 
generally  can  result  only  in  a  sale.  2 
Lindley  on  Mines,  2d  ed.,  sec.  535,  p. 
887,  note  1. 

17  City    of    Telluride    v.    Davis,    33 
Colo.  355,  108  Am.  St.  Rep.   101,  80 
Pac.  1051,  sed  qu. 


344  (3d  ed.)     Pt.  III.     THE  LAW  OF  PRIOR  APPROPRIATION.       §  320 

Use  by  one  tenant  in  common  of  more  than  his  share  may  be 
enjoined,18  but  it  does  not  become  adverse  so  as  to  start  prescription 
until  notice  thereof  is  brought  home  to  the  other ; 19  likewise  where 
he  sells  more  than  his  undivided  interest,  actual  ouster  and  notice 
are  necessary  to  'constitute  adverse  use  thereunder.20  Nonuse  by 
one  does  not  diminish  his  right  in  favor  of  the  others.21  The 
wrongful  acts  or  use  of  one  do  not  give  the  other  a  right  to  dig  a 
new  ditch  and  take  all.22  Each  must  consider  seepage  and  evapora- 
tion in  the  amount  he  is  entitled  to  divert,23  and  each  may  alone 
sue  a  trespasser  to  enjoin  wrongdoing,24  or  may  sell  his  interest 
without  the  consent  of  the  others.25  A  cotenant  cannot  be  com- 
pelled to  contribute  for  expense  in  replacing  a  dam  or  constructing 
a  ditch  (the  original  ones  being  washed  out)  at  a  point  other  than 
where  the  original  ones  were  constructed,  unless  it  be  shown  that 
the  new  ones  answer  the  same  purposes  and  results  and  give  the 
cotenant  the  same  rights  as  the  old  ones.1  Under  a  California 
statute  a  tenant  in  common  is  entitled  to  treble  damages  against 
his  cotenant  under  certain  circumstances.2 

Voluntary  unincorporated  associations  of  all  owners  along  a 
stream  constitute  them  tenants  in  common,3  and  consent  is  not 
necessary  to  a  sale  of  the  interest  of  any  one  of  them.4  But  if 
they  incorporate,  obtaining  a  majority  of  all  owners  into  the  cor- 

18  Lorenz  v.  Jacobs   (Cal.),  3  Pac.          25  Biggs  v.  Utah  etc.  Co.,  7  Ariz. 
654;  Carnes  v.  Dalton  (Or.),  110  Pae.      331,  64  Pac.  494. 

170.     Cf.   City  of  Aberdeen  v.  Lytle  When    parties     claim    their    rights 

etc.  Co.  (Wash.),  108  Pac.  945.  through  the  same  diversion  and  from 

19  Smith  v.  North  Canyon  etc.  Co.,  the  same  ditch,  through  which  the  ap- 
16  Utah,  194,  52  Pac.  283.  propriation    was    originally    made    by 

20  Beers  v.  Sharpe,  44  Or.  386,  75  them  or  by  their  predecessors  in  in- 
Pac.  717.  terest,   they   are   tenants   in  common; 

21  Ibid.  and  where,  in  a  suit  with  others  on  the 

22  Arnett  v.  Linhart,  21  Colo.  188,  stream    involving    rights    thereon    no 
40  Pac.  355.  issues   are   framed   between   such  ten- 

23  Anderson  v.  Cook,  25  Mont.  330,  ants  in  common,  their  relative  rights 

64  Pac.  873,  65  Pac.  113.  may   bo  left  undetermined,   and   only 

24  Lytle  Creek   etc.   Co.  v.  Perdew,       their  rights   as   against   other   parties 

65  Cal.  447,  4  Pac.  426;   Roclgers  v.       to  the  suit  will  be  decreed.     Hough  v. 
Pitt,  129  Fed.  932;   Meagher  v.  Har-       Porter,  51   Or.   318,   95   Pac.   732,   98 
denbrook,  11  Mont.  385,  28  Pac.  451.       Pac.  1083,  102  Pac.  728. 

The  eotenant  is  not  an  indispensable  i  Fillmore     City    v.     Fillmore     Co. 

party    to   the    determination   of   one's       (Utah),  103  Pac.  967. 

rights.     The  Debris  Case,  16  Fed.  25,  2  r  ,    R.    ,      lfisq        pnp.  c.     p   , 

54fe?  l^^T/  fi°i  *'*"%       ^    8a42S843;  ^70  D    Co ^Be-' 

2  2  a(*'  «f*  V  «w   £  T    V   ?7fi.        1uette>  1«  Caf.  543,  87  Pac.  10. 
v.  Story,  64  Fed.  524,  30  L.  R.  A.  265, 

12  C.   C.   A.  250;   Himes  v.   Johnson,  3  Smith  v-   North  Canyon  etc.  Co., 

61    Cal.    259;    Union    Mining    Co.    v.  16  Utah,  194,  52  Pac.  283. 

Dangberg,    81    Fed.    73.     But    cf.    20  4  Biggs   v.   Utah   etc.    Co.,   7   Ariz. 

Harvard  Law  Review,  242.  331,  64  Pac.  494. 


§§  321,  322  Ch.  15.     WHO  CAN  APPROPRIATE.  (3d  ed.)  345 

poration,  they  are  not  tenants  in  common  with  the  minority  who 
do  not  come  in,  and  have  no  right  to  control  or  regulate  the  use 
of  such  minority.5 

(3d  ed.). 

§  321.  Same. — Special  statutes  sometimes  govern  disputes  be- 
tween tenants  in  common.  In  Wyoming  there  is  a  special  pro- 
cedure for  the  appointment  of  a  distributor  in  disputes  between 
them.  On  a  verified  petition  to  the  district  court  he  is  appointed 
by  the  court,  and  has  an  official  capacity  with  exclusive  control 
during  the  pleasure  of  the  court ; 6  but  this  procedure  is  not  ex- 
clusive of  other  procedure  whereby  the  court  may  deal  with  such 
disputes  under  general  law.7  In  California  a  statute8  provides 
for  contribution  between  co-owners  of  a  ditch  for  work  on  the  ditch, 
but  this  applies  only  to  work  which  is  on  a  part  of  the  ditch  of 
which  the  party  from  whom  contribution  is  demanded  has  bene- 
ficial use,  and  the  work  must  benefit  him;  so  that  work  done  in 
fluming  and  cementing  below  his  point  of  diversion  is  not  within 
the  statutes.9 

References  to  some  other  statutes  are  given  in  the  note.10 

(3d  ed.) 

§  322.     Riparian  Owners. — Under  the  Colorado  doctrine,  where 

riparian  rights  are  not  recognized,  the  only  way  a  riparian  owner 
can  get  a  water  supply  is  by  an  appropriation,  and  so  they  not 
only  can,  but  must,  be  appropriators  if  they  would  have  any  rights, 
generally  speaking.11 

Under  the  California  doctrine  the  reverse  is  true:  priority  of 
use  by  a  riparian  owner  will  give  no  right  against  other  riparian 

5  Bartholomew  v.  Fayette  etc.  Co.,       of  co-owners   for  repair   and  mainte- 
31  Utah,  1,  120  Am.  St.  Rep.  912,  86       nance. 

Pac.  481.  Oregon. — Stats.  1909,  c.  216,  sec.  61, 

6  Mau  v.  Stoner,  15  Wyo.   109,  87       lien  of  co-owners  for  work  done  after 
Pac.  434,  89  Pac.  466.  ten  days'  notice;  Ibid.,  sec.  63,  water- 

7  Stoner  v.   Mau,   11  Wyo.  366,  72       master  may  take  exclusive  charge  of 
Pac.  193,  73  Pac.  548.  partnership  ditches. 

8  Stats.   1889,  p.  202,  c.  168    (Civ.  Utah. — Water  commissioner,  on  re- 
Code,  sees.  842,  843).  quest,    may    take    charge    of    works. 

9  Arroyo   etc.   Co.  v.  Bequette,  149       Stats.  1911,  c.  104,  p.  145,  sec.  12. 
Cal.  543,  87  Pac.  10.  Wyoming. — Rev.    Stats.  -915.     See, 

10  California.— Stats.,  supra.  also>  Stats-  1907>  P-  138- 
Colorado.— Rev.  Stats.  1908,  p.  1027,          In  addition  to  the  above,  see  stat- 

sec.  4051;  Laws  1893,  p.  312,  concern-  "tes  i°  Par*  VIII,  below, 

ing  lien  of  co-owner  for  work  done.  n  Idaho  etc.  Co.  v.  Stephenson,  16 

Idaho. — McLean's  Idaho  Rev.  Codes,  Idaho,  418,  101  Pac.  821.     Supra,  sec. 

sec.  3311;  Laws  1809,  p.  108,  liability  118.     See,  also,  infra,  sec.  366. 


346  (3d  ed.)     Pt.  III.     THE  LAW  OF  PEIOE  APPEOPKIATION.       §  323 

owners,  as  a  general  principle.12  But  there  is  an  exception  to  this 
general  statement,  where  one  riparian  owner,  an  early  settler  upon 
the  stream,  makes  an  appropriation  while  the  land  of  the  complain- 
ing riparian  owner  is  still  public. 

(3d  ed.) 

§  323.    Early   Riparian    Settlers    in    California. — An    early 

riparian  settler  on  public  land  in  California  may  get  a  greater 
right  than  the  common  law  gives  him  against  other  riparian  owners, 
by  appropriating  the  water  before  the  later  riparian  settlements 
were  made.  Mere  priority  of  settlement  is  immaterial  where  not 
coupled  with  prior  use.  But  where  both  settlement  and  use  pre- 
ceded the  settlement  of  his  opponents,  he  has  a  public  land  appro- 
priation against  the  others,  and  is  not  confined  to  that  relative 
equality  of  use  which  prevails  between  riparian  owners  generally. 
This  was  clearly  laid  down  in  Healy  v.  Woodruff,13  and  approved 
(on  this  point)  in  Cave  v.  Tyler.14  In  Healy  v.  Woodruff  the 
riparian  proprietor  appropriated  water  from  the  same  stream  on 
public  land  before  other  riparian  proprietors  had  taken  up  riparian 
land  along  it,  and  was  protected  therein  against  subsequent  settlers, 
though  it  was  a  larger  proportion  of  the  stream  than  the  law  of 
riparian  rights  would  have  given  him  against  another  existing 
riparian  settler.15  In  Smith  v.  Hawkins  16  the  court  reached  the 
same  result  where  the  defendant  was  awarded  one  hundred  inches 
as  an  appropriator  and  an  additional  amount  as  riparian  right. 
In  Van  Bibber  v.  Hilton,17  all  the  parties  to  the  action  were  riparian 
proprietors  and  the  defendants  were  also  appropriators.  The  trial 
court  limited  the  right  of  the  latter  to  the  amount  claimed  as 
appropriators.  Judgment  was  reversed  by  the  supreme  court  for 
not  also  making  some  allowance  as  riparian  right.  And  in  another 
case  plaintiff's  right  to  an  injunction  was  upheld  in  the  alterna- 
tive.18 A  riparian  proprietor  has  been  given  three  hundred  inches 
as  appropriator  in  addition  to  his  rights  as  riparian  owner.19 

12  Infra,  sees.  670,  739.  18  Huffner  v.   Sawday    (1908),   153 

13  97  Cal.  464,  32  Pac.  528.  Cal.  86,  94  Pac.  424. 

14  133  Cal.  566,  65  Pac.  1089.  i»  Ison  v.  Nelson  Min.  Co.,  47  Fed. 

15  See    quotations    from    this    case  199.     See,    also,    Barneich    v.    Mercy, 
supra,   sec.    244.     See,   also,   Kaler   v.  136  Cal.  206,  68  Pac.  589   (semble) ; 
Campbell,   13   Or.   596,   11   Pac.   301;  Prentice  v.  McKay,  38  Mont.  114,  98 
Porter  v.   Pettingill    (Or.),    110   Pac.  Pac.   1081    (dictum);  Avery  v.  John- 
393.  son  (Wash.),  109  Pac.  1028. 

16  127  Cal.  119,  59  Pac.  295.  In  Lux  v.   Haggin,   69  Cal.  255,  4 

17  84  Cal.  585,  24  Pac.  308,  598.  Pac.  919  (not  officially  reported,  being 


§  324  Ch.  15.     WHO  CAN  APPROPEIATE.  (3d  ed.)  347 

Against  existing  riparian  owners,  one  riparian  owner  can  obtain 
no  exclusive  right ; 20  but  it  seems  clear  that  an  early  riparian 
settler,  by  diverting  water  while  the  land  on  the  stream  except 
his  own  is  public,  may  acquire  by  appropriation  exclusive  rights 
against  riparian  settlers  subsequently  acquiring  their  lands  from 
the  United  States,  greater  than  he  would  himself  have  had  as  a 
riparian  owner. 

(3d  ed.) 

§  324.     Same. — The  foregoing  was  addressed  to  the  claim  of  an 

early  riparian  settler  as  a  public  land  appropriator  on  the  stream 
against  other  riparian  settlers  later  acquiring  their  land  from  the 
public  domain.  While  this  may  enlarge  his  right  against  other 
riparian  owners,  it  is  wholly  immaterial  as  concerns  nonriparian 
owners.  Against  nonriparian  owners,  he  will  not  be  restricted  to 
the  amount  actually  used  as  appropriator,  but  may  insist  upon  the 
full,  though  unused,  flow,  as  any  riparian  owner  may.21  It  is  true 
that  in  one  California  case  where  an  appropriation  had  been  made 
on  public  land  of  all  the  water  reasonably  needed  for  use  on  cer- 
tain riparian  land  which  the  appropriator  thereafter  purchased 
from  the  United  States,  she  was  not  allowed,  against  a  subsequent 
diversion  by  a  nonriparian  owner 22  to  dispute  this  subsequent 
diversion  on  the  ground  of  her  riparian  rights,  the  decision  being 
rested  on  the  ground  that  she  had  all  she  could  reasonably  use 
already.23  But  the  later  California  decisions  lay  down  the  rule 

withdrawn  on  rehearing),  it  was  said:  If  a  person  enters  a  piece  of  land 
"But  an  appropriation  of  the  water  through  or  adjoining  which  a  stream 
of  a  stream  flowing  upon  public  lands,  runs  and  appropriates  the  water  to 
and  upon  lands  held  in  private  owner-  some  useful  purpose  before  other  per- 
ship,  does  not  affect  or  destroy  ripa-  sons  have  entered  any  other  lands 
rian  rights  existing  in  the  stream  at  upon  the  same  stream,  he  stands  in 
the  time  of  the  appropriation.  Both  the  position  of  a  prior  appropriator, 
rights — rights  of  appropriation  and  and  may  divert  all  of  the  water  of  the 
riparian  rights — may  be  acquired  by  stream  if  it  is  necessary  for  the  pur- 
original  and  derivative  acquisition;  pose  for  which  he  appropriated  it, 
they  may  exist  together  and  be  held  without  any  obligation  upon  his  part 
in  common  as  property  and  each  is  en-  to  return  any  portion  of  it  to  the 
titled  to  the  protection  of  the  law."  natural  channel." 

In  Kinney  on  Irrigation,  page  452,  20  Infra,  see.   739. 

it  is  said:   "There  are  a  great  many  21  In*       gec    815 
cases  where  the  riparian  proprietor  is 

also  the  prior  appropriator  of  the  a  Whether  the  subsequent  claimant 
water  of  a  stream.  His  rights  are  was  a  riparian  owner  or  not  is  not  ex- 
limited  to  those  of  a  riparian  pro-  pressly  given  m  the  opinion,  but  he 
prietor  only  when  others  whose  rights  seems  to  >^ve  been  a  nonriparian 
would  be  injured  by  the  diversion  have  owner. 

settled  upon  the  stream  before  he  has  23  Senior  v.  Anderson,  130  Cal.  290, 

made  an  appropriation  of  the  waters.  296,  62  Pac.  563. 


348  (3d  ed.)     Pt.  III.     THE  LAW  OF  PRIOR  APPROPRIATION.       §  325 

that  a  riparian  proprietor  may  insist,  as  against  nonriparian 
diversions  subsequent  to  his  patent,  upon  having  the  complete 
flow  so  far  as  it  is  or  may  be  beneficial  to  his  land,  whether  he 
uses  it  or  not,  and  the  first  riparian  settler  will  not  be  limited 
(against  later  nonriparian  diversions)  to  the  flow  claimed  as  ap- 
propriator  for  use.24 

The  California  law  thus  seems  to  be  that  against  other  riparian 
owners,  one  of  them  settling  upon  a  stream  while  the  land  of  the 
others  is  still  public  may  get  for  use  all  the  rights  of  an  appro- 
priator  to  an  exclusive  use  of  the  stream,  and  at  the  same  time,  as 
against  all  others  (nonriparian  owners)  subsequent  to  the  date  of 
his  settlement,  all  the  rights  of  a  riparian  owner  to  the  complete 
flow  of  the  stream,  whether  using  it  or  not.25  As  is  said  in  Healy  v. 
Woodruff,1  this  gives  great  advantage  to  the  first  settlers  on  a 
stream,  but  is  the  advantage  which  in  California  necessarily  fol- 
lows prior  occupancy  of  public  land  when  coupled  with  a  prior 
appropriation  of  water  thereon ;  the  former  giving  the  common-law 
right  of  full  flow  against  later  nonriparian  appropriation;  the  lat- 
ter giving  the  full  public  land  appropriative  right  against  later 
riparian  patentees.2 

(3d  ed.) 

§  325.     Corporations. — A  corporation  may  appropriate  water, 

and  corporations  frequently  do.3  A  city  owning  water-rights  as 
a  municipal  corporation  cannot  interfere  with  private  appro- 
priators  merely  because  it  is  a  city.4  Some  cities  have  succeeded 

24  Infra,  sees.  452,  815  et  seq.  The   authorities     are,     however,     in 

25  This  last   was   expressly   held   in  some  confusion  because  the  distinction 
Huff ner  v.  Sawday,  supra,  and  Miller  v.  between     riparian     and     nonriparian 
Madera  Co.,  155  Cal.  59,  99  Pac.  502,  claimants  has  not  always  been  borne 
22  L.  R.  A.,  N.  S.,  391.  in  mind.     Infra,  sees.  795,  814,  protec- 

The  rule  in  Oregon  seems  to  be  that  tion  of  riparian  right, 
a  riparian  proprietor  asserting  rights  1  QuQted                        2^ 
under  the  law  of  appropriation  there- 
by   waives    his    riparian    rights,    and  2  As    to    diversions    by   a    riparian 
after   his   needs   as    appropriator   are  owner  giving  no  right,  but  amounting 
satisfied,  he  cannot  claim  as  riparian  to  wrongful  disseisins,  see  supra,  see. 
proprietor  against  nonriparian  owners  246   et   seq.,   discussing   Duckworth   v. 
the  right  to  have  the  excess  flow  in  the  Watsonville  Co. 

channel     of     the     stream      Davis     v.  3  E          Montecito  etc.  Co.  v.  ganta 

Chamberlain,  51  Or.  304   98  Pac ,154;  Barbar* '144  Cal<  578    77  Pac    m3 

^lUlomn    ™  4ltDTo'a        °r>    I    '  People  ex  rel.  H^yneman  v.  Blake,  19 

Pac.  200,  97  Pac.  539,  saying  he  may  CalF579;  North  e(c    Co-  v.  Orient  etc. 

elect  which  right  he  will  claim  under,  c       1  p'ed_  522    6  gaw_  2gQ    Q  Mon. 

but  cannot   claim  both;    Seaweard  v.  M.'     -p        ,_9Q 

Duncan,   47    Or.    640,   83    Pac.    1043;  ™-  **?'  °Zy' 

Low  v.  Schaffer,  24  Or.  239,  33  Pac.  •*  Santa  Barbara  v.  Gould,  143  Cal. 

678.  421,  77  Pac.  151.     See  supra,  sec.  308. 


§  325  Ch.  15.     WHO  CAN  APPROPRIATE.  (3d  ed.)  349 

to  the  old  rights  of  Mexican  pueblos,  notably  Los  Angeles,  but  this 
right  attaches  to  few  cities.5  A  corporation  organized  under  the 
laws  of  a  Territory  may  be  an  appropriator,  as  well  as  one  organ- 
ized under  the  laws  of  a  State.6  A  foreign  corporation  cannot  be 
an  appropriator  without  complying  with  the  laws  of  the  State  by 
filing  articles.7  A  corporation  is  not  bound  by  water-right  agree- 
ments of  a  stockholder  with  third  persons.  Thus,  a  water-right 
from  one  company  is  not  a  right  to  water  from  another  company  S 
whose  stock  is  held  by  the  first  'company.8  In  California,  a  two-  ^ 
thirds  vote  of  stockholders  is  required  to  authorize  a  water  com- 
pany to  divide  up  its  water-rights  among  its  stockholders,  in  some 
cases.9  A  Colorado  case  upholds  a  contract  exempting  the  holder 
of  a  water-right  from  corporation  assessments.10 

A  corporation  may  appropriate  water,  as  an  appropriator.  It 
need  not  own  any  land  nor  be  a  mere  combination  of  landowners ;  u 
and  where  it  is  a  combination  of  some  landowners  or  private  ap- 
propriators,  it  has  no  right  to  control  or  regulate  the  use  of  owners 
not  in  the  corporation,  though  those  in  the  corporation  are  a 
majority  of  all  users  upon  the  stream.12  In  the  arid  States,  the 
corporation  is  considered  an  appropriator  only  in  a  qualified  way, 
the  consumers  whom  it  supplies  being  regarded  as  owning  the 
water- rights  in  the  stream  for  most  purposes;  but  in  California, 
not  only  are  the  consumers  not  appropriators,  but  even  appro- 
priators  who  incorporate,  conveying  their  rights  to  a  co-operative 
corporation,  cease  to  be  appropriators.13  This  question  as  to 
whether  consumers  from  corporations  are  appropriators  is  further 
considered  hereafter;  as  is  also  the  question  of  the  rights  and 
duties  of  corporations  as  quasi  public  servants.14 

Articles  of  incorporation  to  divert  water  do  not  include  build- 
ing of  reservoirs  to  store  it.15  A  director  may  make  a  separate  • 

5  Supra,  see.  68.  188  U.  S.  545,  555,  23  Sup.  Ct.  Rep. 

6  Gutierres  v.  Albuquerque  etc.  Co.,       3.38,  47  L.  Ed.  588. 

188  U.  S.  555,  23  Sup.  Ct.  Rep.  338,  12  Bartholomew  v.  Fayette  etc.  Co., 

47  L.  Ed.  588.  31  Utah,  1,  120  Am.  St.  Rep.  912,  86 

7  Telluride  etc.   Co.   v.   Rio   Grande       Pac.  481. 

etc.  Co.,  187  U.  S.  582,  583,  23  Sup.  13  Fuller  v.  Azuza  etc.  Co.,  138  Cal. 

Ct.  Rep.  178,  47  L.  Ed.  313.  204,  71  Pac.  98. 

8  Lanham  v.  Wenatchee  etc.  Co.,  48  14  See    infra,    sees.     1260    et    seq., 
Wash.  337,  93  Pac.  522.  1324,  1338. 

9  Civ.  Code,  sec.  309.  15  Seeley  v.  Huntington  etc.  Assn., 

10  Farmers'   etc.   Co.   v.   Henderson,       27  Utah,  179,  75  Pac.  367.     See  Wyo. 
46  Colo.  37,  102  Pac.  1063.  Stats.   1911,  c.   29,  p.  43,   curing   de- 
li Gutierres  v.  Albuquerque  etc.  Co.,       fective  articles. 


350  (3d  ed.)     Pt.  in.     THE  LAW  OF  PEIOE  APPROPEIATION.       §  326 

appropriation.16  A  city  may  have  power  under  its  charter  (and 
Los  Angeles  has  such  power)  to  own  its  own  water  plant,  but 
must  not  allow  waste.17  A  city  may  sell  its  water-rights  to  a  water 
company.18 

A  corporation  otherwise  competent  may  acquire  a  water-right 
under  the  United  States  Reclamation  Act.19 

(3d  ed.) 

§  326.    Appropriations  by  the  United  States. — It  has  been  said 

that  the  United  States  Reclamation  Service  must  get  its  water 
under  State  law  like  private  appropriators.20  As  a  matter  of  fact, 
the  United  States  Reclamation  Service  adopts  that  course.  On  the 
other  hand,  military  and  Indian  reservations  are  held  to  have  rights 
though  no  appropriation  has  been  made,  and  not  restricted  to  actual 
use  if  use  is  made.  The  matter  is  .elsewhere  considered.21 

16  Farm  Inv.  Co.  v.  Alta  etc.  Co.,  33  Utah,  289,  93  Pac.  828.     See,  also, 
28  Colo.  408,  65  Pac.  22.  City  of  Colorado  Springs  v.  Colorado 

17  Fellows  v.  Los  Angeles,  151  Cal.  City,  42  Colo.  75,  94  Pac.  316. 
52,  90  Pac.   137.     See,  also,  Aylmore  l»  37  Land  Dec.  428. 

v.   City   of   Seattle,   48   Wash.   42,   92  20  United  States  v.  Burley,  172  Fed. 

Pac.   932.     Likewise,  South  Pasadena  615;     affirmed   in    Burley    v.   United 

v.  Pasadena  L.  &  W.  Co.  (1908),  152  States,  179  Fed.  1,  101  C.  C.  A.  429. 

Cal.  579,  93  Pac.  490.     See  Wyoming  21  Supra,     sec.     197     et     seq.     Es- 

Const.,  art.  13,  sec.  5.  pecially  see.  207.     Infra,  sec.  1394  et 

18  Brummitt  v.   Ogden  W.  W.   Co.,  seq.,  national  irrigation. 

§§  327-330.      (Blank  numbers.) 


§§331,332          Ch.  16.     WHAT   CAN  BE   APPKOPBIATED.     (3d  ed.)  351 


CHAPTER  16. 
WHAT  CAN  BE  APPROPRIATED. 

5  331.     Classification  of  waters. 

A.     WATERCOUKSES. 

§  332.  Water  in  a  surface  watercourse. 

§  333.  What  constitutes  a  watercourse. 

§  334.  Same — Definition. 

§  335.  Same — Examples. 

§  336.  Springs. 

§  337.  Surface  tributaries. 

§  338.  Sloughs. 

B.    NAVIGABLE   AND   INTERSTATE   STREAMS. 

§  339.     Navigable  streams. 

§  340.     Interstate  streams. 

§  341.     Same — Controversies  between  States — Kansas  v.  Colorado. 

§  342.     Between  riparian  owners  in  one  State  and  appropriators  in  an- 
other State. 

§  343.     Same — Between  appropriators  in  different  States. 

§  344.     Difficulties  of  procedure. 

§  345.     Conclusions  regarding  interstate  streams. 

C.     STANDING  AND  DIFFUSED  WATEB. 
§  346.    Lakes  and  ponds. 
§  347.     Flood  or  storm  or  surface  water. 
§  348.     Drainage  of  surface  water. 
§  349.     Use  of  surface  water. 
§  350.     Swamp  lands. 
§  351.     Underground  water. 
§§  352-360.     (Blank  numbers.) 

(3d  ed.) 

§  331.  Classification  of  Waters. — Speaking  in  the  broadest 
terms,  water  occurs  in  two  general  classes:  bodies  of  definite  form 
and  situation  (such  as  watercourses,  if  running;  lakes,  if  stand- 
ing), and  occurrences  uncertain  in  situation  and  without  form, 
such  as  diffused  surface  water  in  swamps. 


A.     WATERCOURSES. 
(3d  ed.) 
§  332.    Water  in  Surface  Watercourse. — Water  in   a   surface 

watercourse  is  the  type  case  of  appropriation.     The  cases  almost 


352  (3d  ed.)     Pt.  III.     THE  LAW  OF  PRIOR  APPROPRIATION.       §  333 

invariably  speak  only  of  "running  streams,"  "flowing  water," 
"water  in  a  watercourse."  This  is  also  the  language  of  the  Cali- 
fornia Civil  Code,1  providing  what  can  be  appropriated  (on  public 
land).  "The  right  to  the  use  of  running  water  flowing  in  a  river 
or  stream  or  down  a  canyon  or  ravine,  may  be  acquired  by  appro- 
priation." 

(3d  ed.) 

§  333.  What  Constitutes  a  Watercourse. — Close  questions 
arise  as  to  what  is  and  what  is  not  a  watercourse.  In  Lux  v.  Hag- 
gin,2  the  court  discusses  at  length  the  requisites  for  a  watercourse, 
and  concludes  that  a  channel  is  necessary  to  the  constitution  of  a 
watercourse ; 3  also  a  tendency  of  water  to  flow  in  it  more  or  less 
regularly.4  The  second  requisite  is  not  fulfilled  by  a  chance  flow  in 
a  channel  usually  dry  all  year  round,5  though,  on  the  other  hand, 
the  channel  need  not  be  full  all  year  round,  nor  flow  continuously.6 
It  is  a  question  of  fact  whether  there  is  a  tendency  to  regular  flow, 
and  no  presumption  of  continuance  can  be  indulged  from  proof 
of  a  single  flow.7 

"It  is  not  essential  to  a  watercourse  that  the  banks  shall  be  un- 
changeable, or  that  there  shall  be  everywhere  a  visible  change  in 
the  angle  of  ascent  marking  the  line  between  bed  and  banks.  The 
law  cannot  fix  the  limits  of  variation  of  these  and  other  particulars. 
As  was  said,  in  effect,  by  Curtis,  J.,  in  Howard  v.  Ingersoll,8  the 
bed  and  banks  or  the  channel  is  in  all  cases  a  natural  object,  to  be 
sought  after,  not  merely  by  the  application  of  any  abstract  rules, 
but,  'like  other  natural  objects,  to  be  sought  for  and  found  by  the 

1  Sec.  1410.     The  1911  amendment  Rep.  673;  Wagner  v.  Long  Island  R. 
does  not  affect  this.     See  infra,  sec.  Co.,  5  Thomp.  &  C.  163,  2  Hun,  633; 
1432.  Huffner  v.   Sawday,   153   Cal.   86,   94 

2  69  Cal.  255,  at  413-419.  10  Pac.  Pac-   4245    Verdugo   etc.   Co.   v.   Ver- 
674  dugo,  152  Cal.  655,  93  Pac.  1021. 

tr       •     01    n  i  1Q  one  case  it  is  said:    "It  is  true 

ofio    ooC°£  '   RfiaAZ°   V>              '  the   evidence   ^ows,   that   toward   the 

^8y'  ^  *  end   of   every   dry   season,    and    when 

4  Accord,  Barnes  v.  Sabron,  10  Nev.  the   waters   fall   in   the   stream,   there 
217,  4  Morr.  Min.  Rep.  673.  are    places    in    the    channel    of    this 

5  Lux  v.  Haggin,  supra.  South  Fork  above  the  reservoir  which 

6  Spangler    v.    San    Francisco,    84  are   dry,  but  a  watercourse   does  not 
Cal.    12,    18    Am.    St.    Rep.    158,     23  lose  its  character  as  such  because  in 
Pac.   1091 ;   Shively  v.    Hume,   10  Or.  dry  seasons,  or  under  certain  climatic 
76;    Simmons  v.   Winters,   21   Or.   35,  conditions  its  channel  may  become  dry 
28  Am.  St.  Rep.  727,  27  Pac.  7;  New  in  places."     Sierra  County  v.  Nevada 
York   etc.   Co.   v.    Speelman,   12    Ind.  County,  155  Cal.  1,  99  Pac.  371. 
App.   372,  40   N.   E.   541;    Eulrich   v.  7  Lux  v.   Haggin,  supra;  Morrison 
Richter,     37     Wis.     226;     Barnes     v.  v.  Officer,  48  Or.  569,  87  Pac.  896. 
Sabron,   10   Nev.   217,  4   Morr.    Min.  8  13  How.  428,  14  L.  Ed.  209. 


£  333  Ch.  16.     WHAT  CAN  BE  APPROPRIATED.       (3d  ed.)  353 

distinctive  appearances  it  presents.'  "Whether,  however,  worn 
deep  by  the  action  of  water,  or  following  a  natural  depression  with- 
out any  marked  erosion  of  soil  or  rock;  whether  distinguished  by 
a  difference  of  vegetation,  or  otherwise  rendered  perceptible — a 
channel  is  necessary  to  the  constitution  of  a  watercourse."  And 
elsewhere  in  the  same  case :  "  A  watercourse  has  been  said  to  consist 
of  'bed,  banks  and  water.'  The  water  need  not  flow  continually, 
but  it  would  seem  the  flow  must  be  periodical — such  as  may  be  ex- 
pected during  a  portion  of  each  year."  And  again:  "If  the 
water  did  not  flow  with  regular  periodicity,  or  if,  flowing  periodi- 
cally, it  had  no  defined  channel  (other  than  the  whole  swamp),  the 
plaintiffs  had  no  cause  of  action."9 

Beside  these  two  requisites  given  in  Lux  v.  Haggin,  of  a  chan- 
nel and  a  flow,  a  third  requisite  is  usually  recognized,  viz.,  a  per- 
manent source  of  supply.  To  constitute  a  watercourse  it  is  neces- 
sary that  there  be  a  permanent  source  of  supply.10  The  source 
may  be  springs,11  or  it  may  be  surface  water ; 12  or  a  pond  formed 
by  surface  water.13 

There  are,  hence,  three  essentials  requisite  to  constitute  a  water- 
course, viz. :  A  channel,  a  flow,  and  a  source  of  supply.  Two  other 
characteristics  are  usually  found:  (a)  tributaries,  surface  or  sub- 
terranean; (b)  a  subflow,  seeping  with  the  stream  beneath  the 
soaked  soil,  which  subterranean  parts  of  the  stream  are  considered 
elsewhere.14 

»  Lux  v.  Haggin,   69  Cal.  255,  10  13  Neal  v.   Ohio   River  R.    Co.,  17 

Pac.  674.  W.  Va.  316,  34  S.  E.  914. 

10  Barkley  v.  Wileox,  86  N.  Y.  140,  "The  source  of  a  stream  is  defined 
40  Am.   Rep.  519 ;   Jeffers  v.  Jeffers,  to    be    'the    spring    or    fountain-head 
]07  N.  Y.  650,  14  N.  E.  316;   Greg-  from  which  its  supply  of  water  pro- 
ory  v.  Bush,  64  Mich.  37,  8  Am.  St.  ceeds;  any  collection  of  water  within 
Rep.    797,   31    N.   W.    90.     See    cases  or  upon  the  surface  of  the  earth  from 
collected  in  10  Am.  &  Eng.  Ann.  Gas.  which    a    stream     originates.'     (New 
1047,  note.  Revised  Ency.  Die.)     And  as  said  by 

11  Pyle   v.   Richards,   17   Neb.    180,  the  trial  court  in  discussing  the  pres- 
22  N.  W.  370;  Mitchell  v.  Bain,  142  ent  objection  of  appellant  on  demur- 
Ind.   604,     42    N.     E.    230;     Wolf   v.  rer  to  the  complaint:   'This  definition 
Crothers  (Pa.),  21  Pa.  Co.  Ct.  R.  627.  when  applied  to  a  torrential  stream  in 

12  Arthur   v.    Grand     Trunk   R.    R.  the  high  Sierras  makes  the  said  lan- 
Co.,    22    Ont.    App.    89,    95;    Beer   v.  guage    or    the    meaning    of    it,    very 
Stroud,     19     Ont.     10;     McKinley    v.  doubtful.     It   is   but   common   knowl- 
Union   County   Freeholders,   29   N.   J.  edge  that  such  stream  has  many  and 
Eq.  164;   Kelly  v.  Dunning,  39  N.  J.  varied  sources  usually  covering  a  large 
Eq.  482;   Eulrich  v.  Richter,  41  Wis.  extent   of  watershed,   and  varying   in 
320;   Barnes  v.  Sabron,  10  Nev.  217,  length  as  it  extends  into  said  water- 
4  Morr.   Min.   Rep.   673;    2   Farnham  shed.'"     County  of  Sierra  v.  County 
on  Waters,  sec.  457;  Gould  on  Waters,  of  Nevada,  155  Cal.  1,  99  Pac.  371. 
3d  ed.,  sec.  263.  14  Infra,  sec.  1077  et  seq. 

Water  Rights — 23 


354  (3d  ed.)     Pt.  III.     THE  LAW  OF  PRIOR  APPROPRIATION.       §  334 

(3d  ed.) 

§  334.  Same — Definition. — As  summing  up  the  foregoing  de- 
tailed discussion,  the  following  definition  is  quoted  from  Sanguin- 
etti  v.  Pock : 15 

"A  watercourse  is  defined  to  be  'a  running  stream  of  water; 
a  natural  stream,  including  rivers,  creeks,  runs,  and  rivulets. ' 10 
Further  defining  the  term,  this  court  said:  'There  must  be  a 
stream,  usually  flowing  in  a  particular  direction,  though  it  need 
not  flow  continually.  It  may  sometimes  be  dry.  It  must  flow  in 
a  definite  channel,  having  a  bed  or  banks,  and  usually  discharges 
itself  into  some  other  stream  or  body  of  water.  It  must  be  some- 
thing more  than  a  mere  surface  drainage  over  the  entire  face  of 
the  tract  of  land,  occasioned  by  unusual  freshets  or  other  extraor- 
dinary causes.  It  does  not  include  the  water  flowing  in  the 
hollows  or  ravines  in  land,  which  is  mere  surface  water  from  rain 
or  melting  snow  (i.  e.,  snow  lying  and  melting  on  the  land),  and  is 
discharged  through  them  from  a  higher  to  a  lower  level,  but  which 
at  other  times  are  destitute  of  water.  Such  hollows  or  ravines  are 
not,  in  legal  contemplation,  watercourses. ' 17  The  evidence  does 
not  bring  the  depression  or  swale  in  question  within  this  definition. 
This  so-called  watercourse  is  nothing  more  than  a  local  drainway 
to  a  limited  amount  of  land  which  has  neither  a  definite  beginning 
nor  ending,  and  is  like  hundreds  of  similar  swales  found  in  land 
whose  surface  may  be  called  generally  level. ' ' 18 

A  statutory  definition  is  provided  in  North  Dakota,  which,  with 
some  other  definitions,  is  given  in  the  note.19 

15  136  Cal.  466,  at  471,  89  Am.  St.       Hutchinson    v.    Watson    etc.    D.    Co. 
Rep.  169,  69  Pac.  98.  (1909),   16   Idaho,   484,   133   Am.   St. 

16  Citing   Black's   Law    Dictionary,      Rep.  125,   101  Pac.   1059. 

title  ''Watercourses."  19  "A    watercourse    entitled    to    the 

17  Citing  Los  Angeles  etc.  Assn.  v.  protection   of   the   law   is   constituted, 
Los   Angeles,    103    Cal.   466,   37    Pae.  if  there  is  a  sufficient  natural  and  ac- 
375,  citing  text-books  and  cases.  customed  flow  of  water  to  form  and 

18  See  Pomeroy  on  Riparian  Rights,  maintain  a  distinct  and  defined  chan- 
secs.  6,  62.  nel.     It  is  not  essential  that  the  sup- 

"A  watercourse  is  a  stream  of  water  ply  of  water  should  be  continuous  or 

flowing  in  a  definite  channel,  having  from  a  perennial  living  source.     It  is 

a   bed   and   sides   or  banks,   and   dis-  enough  if  the  flow  arises  periodically 

charging  itself  into  some  other  stream  from    natural    causes,  and    reaches  a 

or  body  of  water.     The  flow  of  water  plainly   defined   channel   of   a   perma- 

need    not    be    constant,    but    must    be  nent   character."     N.   D.   Stats.    1907, 

more  than  mere  surface  drainage  oc-  p.   444. 

casioned     by     extraordinary     causes;  Following  are  some  additional  cases 

there  must  be  substantial  indications  bearing     upon     what     constitutes     a 

of  the  existence  of  a  stream,  which  is  watercourse :     Pyle    v.     Richards,    17 

ordinarily  a  moving  body  of  water."  Neb.  180,  22  N.  W.  370 ;  Morrissey  v. 


§  335  Cli.  16.     WHAT  CAN  BE  APPROPRIATED.       (3d  ed.)  355 

(3d  ed.) 

§  335.     Same — Examples. — The  following  are  various  forms  of 

stating  that  a  watercourse  existed :  Where  a  stream  usually  flows  in 
a  continuous  current,  the  fact  that  the  water  thereof,  on  account 
of  the  level  character  of  the  land,  spreads  over  a  large  area,  with- 
out apparent  banks,  does  not  affect  its  character  as  a  watercourse.20 
A  watercourse  with  well-defined  banks  which  is  the  natural  outlet 
for  the  waters  of  lakes,  and  through  which  the  waters  will  reach 
a  common  place,  is  a  natural  watercourse,  though  it  is  called  a 
swag  or  a  swamp  or  a  creek,  and  whether  its  course  is  straight  or 
crooked.21  In  one  case,  A  owned  lands  adjoining  a  lake.  The 
main  outlet  becoming  choked  up  with  sand,  the  waters  overflowed 
the  lands  of  B  and  C  on  the  north  of  the  lake,  forming  marshes 
and  swales,  and  escaped  into  a  creek  flowing  into  a  bay.  They 
erected  a  dike  to  protect  their  land,  which  raised  the  water  in  the 
lake,  and  threw  it  back  upon  A's  land.  Held,  that  the  waters  on 
the  lands  of  B  and  C  could  not  be  considered  merely  as  surface 
water,  but  constituted  a  watercourse,  and  that  they  had  no  right 
to  erect  the  dike.22  The  fact  that  a  stream  having  a  bed,  banks 
and  current  has  been  deepened  artificially  for  drainage  purposes, 
or  that  it  is  at  times  dry,  does  not  deprive  it  of  the  character  of  a 
watercourse.23  A  valley  dry  on  the  surface'  every  summer  from 
June  to  November,  the  soil  being  sandy,  and  the  river-bed  varying 
greatly  and  changing  often,  may,  nevertheless,  constitute  a  water- 
Chicago  etc.  Co.,  38  Neb.  406,  56  N.  88  Iowa,  47,  45  Am.  St.  Rep.  224,  55 
W.  946;  West  v.  Taylor,  16  Or.  165,  N.  W.  77. 

13   Pac.     665 ;     Geddis   v.    Parrish,   1  Colloquially,  "watercourse"  is  some- 

Wash.   587,   21   Pac.   314;     Rigney   v.       times    loosely    used   to    indicate    the 
Tacoma  etc.  Co.,  9  Wash.  576,  38  Pac.       channel     alone.     Doe     dem.     Earl    of 
147,  26  L.  R.  A.  425;    Town  v.  Mis-       Egmont  v.  Williams,  11  Q.  B.  688. 
souri  Pac.  Ry.,  50  Neb.  768,  70  N.  W.  In    the    California    Political     Code, 

402;  Mace  v.  Mace,  40  Or.  586,  67  section  3908,  the  "mouth  of  a  creek" 
Pac.  660,  68  Pac.  737;  Case  v.  Hoff-  is  defined  as  follows:  "The  mouth  of 
man,  84  Wis.  438,  36  Am.  St.  Rep.  a  creek,  river  or  slough  which  empties 
937,  54  N.  W.  793,  20  L.  R.  A.  40;  into  another  creek,  river  or  slough, 
Brown  v.  Schneider,  81  Kan.  486,  135  is  the  point  where  the  middle  of  the 
Am.  St.  Rep.  396,  106  Pac.  41 ;  Hill  channels  intersect." 
v.  Cincinnati  etc.  Co.,  109  Ind.  511,  20  Miller  &  Lux  v.  Madera  Canal  & 

10  N.  E.  410;  Larimore  v.  Miller,  78       Irr.  Co.,  155  Cal.  59,  99  Pac.  502,  22 
Kan:    459,    96     Pac.     852;     West    v.       L.  R.  A.,  N.  S.,  391. 
Taylor,   16     Or.     165,     13     Pac.    665;  21  Hastie  v.  Jenkins,  53  Wash.  21, 

Barnes  v.  Sabron,  10  Nev.  217,  4  Morr.       101  Pac.  495. 

Min.  Rep.   673;   Shively  v.   Haine,   10  22., West  v.   Taylor,   16   Or.   165,   13 

Of.  76 ;  Quinn  v.  Chicago  etc.  Ry.  Co.,       Pac.  665. 

23   S.  D.   126,   120   N.   W.   884;    City  23  Rigney  v.  Tacoma  Light  &  Water 

of  Paola  v.  Garman  C1909),  80  Kan.  Co.,  9  Wash.  576.  38  Pac  147  26  L 
702,  103  Pac.  83;  Hinkle  v.  Avery,  R.  A.  425. 


356  (3d  ed.)     Pt.  III.     THE  LAW  OF  PRICE  APPROPRIATION.       §  335 

course.24  Where  water,  owing  to  the  hilly  or  mountainous  charac- 
ter of  the  country,  accumulates  in  large  quantities  from  rains  and 
melting  snow,  and  at  regular  seasons  descends  through  gullies  or 
ravines  upon  the  lands  below,  and  in  its  flow  cuts  out  through  the 
soil  a  well-defined  channel  which  bears  the  unmistakable  impress 
of  the  frequent  action  of  running  water,  and  through  which  it  has 
flowed  from  time  immemorial  during  such  seasons,  such  stream  is 
to  be  considered  a  watercourse.25 

The  following  are  statements  of  where  a  watercourse  does  not 
exist:  When  the  water  is  stagnant  or  spread  out  with  no  well- 
defined  current,  the  current  becoming  imperceptible  or  lost,  it  be- 
comes a  lake  or  pond  or  swamp.1  A  bog  of  one-half  acre  fed  by 
percolations,  but  no  channel  entering  or  leaving,  is  not  a  water- 
course, and  cannot  be  appropriated  as  such.2  To  constitute  a 
watercourse  there  must  be  a  stream,  usually  flowing  in  a  particular 
direction,  in  a  definite  channel,  having  a  bed,  sides,  or  banks, 
though  it  will  not  flow  continually,  and  must  usually  discharge 
itself  into  some  other  stream  or  body  of  water;  there  must  be 
more  than  surface  drainage ;  and  it  does  not  include  wrater  flowing 
in  hollows  or  ravines,  which  is  mere  surface  water,  from  rain  or 
melting  snow.3  A  marsh  or  swamp  is  not  a  watercourse.4 

Where  one  builds  a  ditch  to  use  surface  water,  a  landowner 
above  may  nevertheless  obstruct  it  to  keep  water  off  his  land.5 
Depressions  in  the  prairies  due  to  the  rolling  character  of  the 
ground,  where  the  surface  water  drains,  are  not  watercourses,8 
and  rights  of  permanent  flow  and  use  cannot  be  predicated  thereon. 
Where  the  water  spreads,  having  no  well-defined  current,  as  into 
a  marsh,  it  cannot  be  deemed  a  watercourse,  and  accordingly  does 

24  Huffner  v.   Sawday   (1908),   153  4  Hayward    v.    Mason     (1909),    54 
Cal.     86,    94     Pac.     424,     citing    Los      Wash.  653,  104  Pac.  141. 

Angeles    Assn.    v.    Los     Angeles,    103  5  City  of  Paola  v.  Garman  (1909), 

Cal.  461,  37  Pae.  375.  80  Kan.  702,  103  Pac.  83. 

25  Simmons  v.  Winters,  21  Or.  35,  6  pibbs   v-  Williams,   25  Kan.   214, 
28  Am.  St.  Rep.  727,  27  Pac.  7.     See  37    Am.    Rep.    349;    Rait   v.    Furrow, 
Kroeger  v.  Twin  Buttes  Co.    (Ariz.),  74  Kan    101    85  Pac.  934,  6 1  L ,   E :.  A ., 
114  Pac.  553,  concerning  wet-weather  ^^A™7''™***'®*?  °f  Madison 

:arroyos  in  Arizona.  (1886)>  ™.™-24l>  39  4™'  *<£•  l3^ 

Rice  v.   City   of   Evansville,   108   Ind. 

1  Hough  v.   Porter,  51   Or.  318,  98  7,   53    Am.    Rep.   53,   9    N.   E.    139; 
Pac.  1083,  at  1101.     Citing  inter  alia,  Eulrich  v.  Richter,  37  Wis.  226.   '  But 
this  book,  2d  ed.,  p.  161.  see  Quinn  v.  Chicago  etc.  Co.   (1909), 

2  Dickey  v.  Maddux,  48  Wash.  411,  23  S.  D.  126,  120  N.  W.  884,  disap- 
•93  Pac.  1091.  proving  Gibbs  v.  Williams,  supra,  and 

3  Robinson  v.  Shanks,  118  Ind.  125,  see  Parizek  v.  Hinek   (Iowa),  123  N. 
20  N.  E.  713.  W.  180,  as  to  a  swale. 


§  336  Ch.  16.     WHAT  CAN  BE  APPROPRIATED.       (3d  ed.)  357 

not  come  within  any  rule  permitting  a  claim  thereto  as  a  riparian 
owner.7 

(3d  ed.) 

§  336.     Springs.  —  Water  from  a  spring  is  water  in  a  water- 

course, however  small,  if  it  runs  off  in  a  definite  channel,  with  a 
tendency  to  regularity,8  and  may  be  appropriated  as  water  in  a 
watercourse,9  even  though  the  appropriator  builds  a  ditch  to  the 
very  mouth  of  the  spring.10  The  water  in  the  spring  itself,  how- 
ever, that  is,  before  it  has  gathered  on  the  surface,  is  not  water 
in  a  surface  watercourse,  but  is  treated  on  the  principles  of  under- 
ground water.11  Water  flowing  from  a  well  on  public  land  may 
be  appropriated  as  water  in  a  surface  watercourse,  though  the 
appropriator  takes  the  stream  at  its  starting  point  —  i.  e.,  ditches 
to  the  mouth  of  the  well.12  This  case  is  very  like  Ely  v.  Ferguson 
(supra),  cited  therein,  and  the  court  expressly  declares  that  the 
decision  does  not  refer  to  the  percolations  supplying  the  well 
underground;  but  only  to  the  water  on  the  surface.  Diverting 
ground  water  by  digging  a  few  feet  below  the  surface  of  a  spring 
at  the  spring-head  is  the  same  as  taking  it  at  the  surface,  and  un- 
lawful against  lower  claimants  to  whom  the  spring  water  came  on 
the  surface.13  In  one  case  it  was  decided  that  a  creek  having  its 
source  in  springs,  which  ran  a  short  distance  through  a  natural 
surface  channel,  and  then  discharged  into  a  large  slough,  which 
had  no  natural  surface  outlet,  was  a  watercourse,  and  that  the 
waters  running  in  the  surface  channel  could  not  be  diverted  to  the 
injury  of  the  lower  owners.13*  When  a  spring  furnishes  a  stream  of 
water  that  rises  to  the  surface,  the  right  of  appropriation  at- 
taches,14 but  where  the  admitted  quantity  is  so  insignificant  that  a 
surface  stream  is  impossible,  when  spread  over  the  width  of  ground 
involved,  the  use  of  the  water  belongs  to  the  person  upon  whose 
land  it  first  arises.15 

7  Hough  v.  Porter,  51  Or.  318,  95  12  De    Wolfskill   v.    Smith,    5    Cal. 
Pac.  732,  98  Pac.  1083.  App.  175,  89  Pac.   1001. 

8  Brosnan   v.     Harris,   39    Or.    148,  13  Dudden      v.      (Glutton      Union) 
87   Am.   St.   Rep.    649,   65   Pac.    867,  Guardians  etc.   (1857),  1  Hurl.  &  N. 
54    L.  R.  A.    628;    Pomeroy  on    Ri-  527 


46  Ca,.   656;  ..»  OWghtr.  B™wn,  16  Nev.  317, 

Shenandoah  etc.  Co.  v.  Morgan,   106  tu  Am'  ***•  **"' 

Cal.  409,  39  Pac.  802.  14  Brosnan  v.   Harris,   39   Or.    148. 

10  Ely    v.    Ferguson,    91    Cal.    187,  87    Am-    St-   ReP-    649>    65   Pac.    867, 
27  Pac.  587.  54  L.  R,  A.  628. 

11  Cohen  v.  La  Canada    Water  Co.,  15  Morrison  v.  Officer,  48   Or.  569 
142  Cal.  437,  76  Pac.  47.  87  Pac.  896. 


358  (3d  ed.)     Pt.  III.     THE  LAW  OF  PRIOR  APPROPRIATION.       §  337 

In  one  case  it  is  held  that  a  spring  flowing  water  immediately 
absorbed  before  going  any  distance  from  the  spring  may  still  be 
regarded  as  a  surface  watercourse  so  as  to  be  appropriated  as  such 
on  the  surface  at  the  mouth  of  the  spring.  The  water  from  the 
spring  never  flowed  enough  to  form  a  surface  stream  or  carry 
water  any  distance  from  the  spring,  what  little  there  was  being 
immediately  taken  up  by  the  soil  adjacent  to  the  spring,  and  it 
was  held  16  that  the  surface  flow  may  be  appropriated  as  against  a 
later  surface  diversion  by  another,  and  that  the  question  is  not 
one  of  rights  in  underground  water,  saying:  ".  .  .  .  whether  the 
waters  are  from  a  well-defined  subterranean  stream  or  purely 
seepage  and  percolating  waters,  it  nevertheless  stands  as  an  admit- 
ted fact  in  the  case  that  they  flow  to  and  collect  at  a  definite  and 
certain  place  and  there  form  what  is  called  by  all  parties  a  spring. 
The  fact  that  the  water  of  this  spring  in  its  natural  state,  before 
any  appropriation  or  diversion,  was  lost  in  the  adjacent  soil,  and 
did  not  flow  off  the  land  in  a  definite  stream,  can  make  no  differ- 
ence and  in  no  way  abridges  the  right  of  the  first  comer  to  locate 
and  appropriate  and  develop  the  same  for  a  useful  or  beneficial 
purpose. ' ' 17 

(3d  ed.) 

§  337.  Surface  Tributaries. — As  a  matter  of  point  of  view,  it 
is  proper  to  look  upon  the  stream  as  not  merely  consisting  of  the 
channel  and  flow  at  the  point  where  the  observer  is  standing,  but 
as  a  composite  body  in  which  the  upper  branches  and  tributaries 
are  an  integral  part.  The  right  to  these  tributaries  is  then  identi- 
cal with  the  right  to  the  stream,  on  the  principle  that  the  whole 
includes  the  sum  of  its  parts.  The  appropriator  of  a  stream  has  a 
right  to  its  tributaries  and  to  all  its  sources,  and  it  merely  becomes 
a  question  of  proof  whether  the  hostile  diversion  is  of  water  that 
is  or  is  not  tributary  on  the  evidence.  (Through  the  advance  of 
scientific  knowledge  this  proof  enables  the  appropriator  to  follow 
and  trace  the  stream  even  into  tributary  percolations  underground, 
a  matter  to  be  separately  considered.)18  The  cases  enforce,  in 
favor  of  a  stream  claimant,  rights  to  tributaries  to  his  stream  on 

16  Much  as  in  Ely  v.  Ferguson,  and  The    source    may    be    springs,    sur- 

Wolfskill   v.    Smith,   supra.  face  water  or  ponds   formed  by  sur- 

,_T/-..  -.,       ,          ICTJU          fa.ce  water  or  underground    water,  or 

405    98epaUcm4ei5  '  '       "*     Permanent     S°"rce     °f     "PP1* 

05,  9,    Fac.  415.  <  Rait  y    Furrow>  74  Kan    1Q1>  g5  pac> 

is  Infra,  sec.  1082.  934,  6  L.  E.  A.,  N.  S.,  157. 


5  338  Ch.  16.     WHAT  CAN  BE  APPROPRIATED.       (3d  ed.)  359 

this  view  of  it.19  Likewise,  as  to  a  lake  that  is  tributary  to  or  the 
source  of  a  stream.20  Likewise  as  to  springs  flowing  into  tribu- 
taries that  flow  into  the  appropriated  stream.21  And  finally,  like- 
wise, on  the  best  authorities,  as  to  the  underground  percolations 
tributary  to  the  springs.22  These  are  all  parts  of  the  stream,  and 
rights  in  them,  on  proof  of  the  facts,  are  governed  by  the  law  of 
the  stream.  The  time  of  appropriation  between  the  stream  claim- 
ant and  the  tributary  claimant  will  govern  their  rights  as  appro- 
priators. 

A  judgment  and  decree  adjudicating  rights  and  priorities  to  the 
use  of  the  waters  of  a  stream  carries  with  it  and  adjudicates  and 
decrees  the  rights  and  priorities  to  the  waters  of  the  tributaries 
to  such  stream  above  the  respective  places  and  points  of  diversion.23 
"The  presumption  is  that  the  water  of  a  tributary  of  a  stream,  less 
the  evaporation,  if  not  interfered  with,  will  naturally  reach  the 
main  stream  either  by  surface  or  subterranean  flow. "  24  A  sub- 
sequent appropriator  of  tributaries  must  produce  clear  and  con- 
vincing evidence  that  the  prior  appropriator  would  not  be  injured 
or  affected  by  the  diversion,  and  has  the  burden  of  proof.25 
Whether  an  upper  creek  is  tributary  to  a  lower  one  is  a  question 
of  fact.1 

(3d  ed.) 

§  338.     Sloughs. — A  slough  without  original  water  of  its  own 

is  not  a  watercourse.2    Where  water  flowed   in   a   slough  having 

19  Priest  v.  Union  etc.  Co.,  6  Cal.  ards  etc.  Co.,  27  Utah,  205,  101  Am. 
170;   Stickler  v.  Colorado  Springs,  16  St.  Eep.   962,   75   Pac.   376;     Ci'ty   of 
Colo.    61,    25     Am.   St.   Rep.    245,    26  New  Whateom  v.  Fairhaven,  24  Wash. 
Pac.   313;    Malad   etc.   Co.   v.    Camp-  493,   64  Pac.   735,  54  L.   R.  A.   190; 
bell,    2    Idaho    (378),    411,    18     Pac.  Cole   v.   Richards   Irr.   Co.,   27    Utah, 
52;    Tonkin  v.   Winzell,   27    Nev.   88,  205,   101  Am.   St.   Rep.   962,   75  Pac. 
73  Pac.  593 ;  Low  v.  Schaffer,  24.  Or.  376. 

239,  33  Pac.   678;   Low  v.  Rizor,    25  21  Beaverhead  etc.  Co.  v.  Dillon  etc. 

Or.  551,   37   Pac.   82;    Boyce  v.   Cup-  Co.,  34  Mont.  135,  85  Pac.  880. 

per,  37  Or.  256,  61  Pac.  642;  Salina  22  Infra,  sec.  1076  et  seq. 

etc.   Co.   v.   Salina   etc.   Co.,   7    Utah,  23  Josslyn  v.  Daly,   15   Idaho,   137, 

456,  27  Pac.  578,  among  others.     Cf.  96  Pac.  568. 

Verdugo   W.   Co.  v.  Verdugo    (1908),  24  Petterson  v.  Payne,  43  Colo.  184, 

152    Cal.     655,    93    Pac.     1021.     See  95  Pac.  301. 

Miller  v.   Wheeler    (1909),   54   Wash.  25  Josslyn  v.  Daly,   15   Idaho,   137, 

429,  103  Pac.  641,  23  L.  R.  A.,  N.  S.,  96  Pac.   137. 

IOCS;    Petterson   v.    Payne,   43    Colo.  1  Wilson  v.  Collin  (1909),  45  Colo. 

184,  95  Pac.  301.  412,  102  Pac.  20. 

20  Duckworth    v.    Watsonville    etc.  2  Lamb    v.    Reclamation    Dist.,   73 
Co.,     150    Cal.     520,     89     Pac.     338;  Cal.  125,  2  Am.  St.  Rep.  775,  14  Pac. 
Buckers  etc.  Co.  v.  Platte  etc.    Co.,  28  625;    Hagge  T.  Kansas   etc.   Co.,   104 
Colo.  187,  63  Pac.  305;  Cole  v.  Rich-  Fed.  391. 


360  (3ded.)     Pt.  III.     THE  LAW  OF  PEIOK  APPROPRIATION.       §339 

well-defined  banks  leading  from  a  river  to  a  creek,  such  slough 
constituted  a  watercourse,  though  at  some  points  the  channel  spread 
out  and  the  water  was  quite  shallow.3  Where  water  flows  from  a 
river  into  a  slough,  or  from  the  slough  into  the  river,  as  one  may 
be  higher  than  the  other  at  a  particular  season,  it  is  to  be  regarded 
as  a  part  of  the  river.4  A  slough  which  carries  no  water  except 
the  overflow  waters  of  a  river  in  times  of  flood,  which,  as  compared 
with  the  volume  of  water  in  the  river,  is  insignificant,  and  which 
has  no  original  water  of  its  own,  but  is  simply  a  conduit  by  which 
occasionally  some  of  the  flood  water  escapes  into  the  lower  lands, 
is  not  a  watercourse.5 


B.     NAVIGABLE   AND   INTERSTATE    STREAMS. 

(3d  ed.) 

§  339.  Navigable  Streams. — The  water  of  navigable  streams 
may  be  appropriated  as  well  as  the  water  of  those  not  navigable. 
Thus,  for  example,  a  dam  in  the  San  Joaquin  Kiver  at  a  point 
where  it  is  navigable,  and  an  appropriation  of  water  there,  were 
upheld  against  all  but  the  State  or  someone  injured  in  navigating.6 
Whether  the  point  could  be  raised  by  the  State  or  those  injured 
in  navigating  was  not  decided.  The  rights  on  navigable  streams 
are  in  general  all  that  can  be  exercised  without  being  inconsistent 
with  the  public  easement  of  navigation.7  The  court  says  in  United 
States  v.  Rio  Grande  Dam  and  Reservoir  Company:8  ''It  does  not 
follow  that  the  courts  would  be  justified  in  sustaining  any  proceed- 
ing by  the  attorney  general  to  restrain  any  appropriation  of  the 
upper  waters  of  a  navigable  stream.  The  question  always  is  one 

3  Cederburg  v.  Dutra,  3  Cal.   App.  Rio  Grande  etc.   Co.,   174  U.   S.   690,  '; 
572,   86   Pac.   838.     See  Lux  v.  Hag-  19    Sup.     Ct.    Rep.     770,    43    L.    Ed.    ; 
gin,  69  Cal.  255,  10  Pac.  674;  Green  1136.     Affirmed    in    Kansas  v.    Colo-    I 
v.  Carotta,  72  Cal.  267,  13  Pac.  685.  rado,  206  U.  S.  46,  27  Sup.  Ct.  Rep. 

4  Turner  v.  James  Canal    Co.,   155  655,  51  L.  Ed.  956. 

Cal.  82,  132  Am.  St.  Rep.  59,  99  Pac.  In    Hutchmson  v.    Watson    D.    Co. 

520,  22  L.  R.  A.,  N.  S.,  401,  17  Ann.  (1909),   16   Idaho,   484,   133   Am.   St. 

Cas;  823.  Rep.   125,  101  Pac.   1059,  at  1063,  it 

x-         TV  i    ^T  seems  to  be  said  by  way  of  dictum, 

108    73mCar-125e  2Tm10St    B?p    ?76        that  an  Appropriation  o/a  navigable 
108,  73  Cal.  125,  2  Am.  St.  Kep.  770,       stream   may  be   made>   though  it  06- 

ac.  bzo.  structs  navigation,  "when  acting  under 

6  Miller  v.  Enterprise  Co.,  142  Cal.      an(j  by  authority  of  law." 

208,   100  Am.  St.  Rep.   115,   75  Pae.  s  174  U.   S.   690,   709,  19   Sup.   Ct. 

770.  R«p.  770,  43  L.  Ed.  1136;  Rio  Grande 

7  Heilbron  v.  Fowler  etc.  Canal  Co.,  etc.   Co.  v.  United   States,   215  U.   S. 
75  Cal.  426,   at  433,  7  Am.   St.  Rep.  266,  30  Sup.  Ct.'Bep.  97,  54  L.  Ed. 
183,   17   Pac.   535;    United  States  v.  190. 


§  340  Ch.  16.     WHAT  CAN  BE  APPROPRIATED.       (3d  ed.)  361 

of  fact,  whether  such  appropriation  substantially  interferes  with 
the  navigable  capacity  within  the  limits  where  navigation  is  the 
recognized  fact."  If  the  appropriation  interferes  with  navigation, 
however,  it  is  invalid.9 

A  lawful  mode  of  ingress  and  approach  is,  howrever,  necessary 
before  the  public  can  exercise  the  privileges  appertaining  to  navi- 
gable waters.     The  public  has  no  right  to  invade  and  cross  private" 
lands  to  reach  navigable  waters  that  are  wholly  surrounded  by  the 
private  land.     If  such  a  right  of  approach  becomes  a  public  neces-^ 
sity,  the  proper  course    is    by  condemnation    under  the  eminent 
domain  procedure.10 

It  may  be  remarked  that  the  title  to  the  bed  of  navigable  streams 
(in  most  jurisdictions)  is  in  the  State.11 

Navigable  streams  are  further  considered  in  a  later  chapter.12 

(3d  ed.) 

§  340.     Interstate  Streams.13 — Recently,  several  cases  have  been 

decided  concerning  the  rights  of  appropriators  on  a  stream  which 
crosses  a  State  boundary.  Most  of  the  cases  say  that  no  inno- 
vations in  the  law  of  appropriation  are  necessary  on  that  account. 
"Water  is  essential  to  human  life  in  the  same  degree  as  light  and 
air,  and  no  bounds  can  be  set  to  its  use  for  supplying  the  natural 

»  Ibid.  Bean  (Mont.),  123  Fed.  618;  Same  v. 

10  Bolsa  etc.  Club  .v.  Burdick,  151  Same>  146  Fed-  428>  affirmed  in  Bean 

Cal.  254,  90  Pac.  532,  12  L.  R.  A..  N.  v-  Morris,  159  Fed.  651,  86  C.  C.  A. 

g     275  5195   The  Salton  Sea  Cases,  172  Fed. 

''      ,  '  820,  97  C.  C.  A.  242;  Miller  v.  Rickey, 

.1  Infra,  see.  898.  127   Fed.   573;    Rickey  v.   Miller,   152 

12  Infra,  sec.  898  et  seq.  Fed.    11,   81    C.   C.    A.   207;    Lamson 

13  See,  also,  infra,  sec.  727.  v.  Vailes,  27  Colo.  201,  61  Pac.  231; 
See,  generally,  the  following  cases:  Taylor  v.   Hulett,   15   Idaho,   265,   97 

Kansas  v.  Colorado,  206  U.  S.  46,  Pac.  37,  19  L.  R.  A.,  N.  S.,  535; 
27  Sup.  Ct.  Rep.  655,  51  L.  Ed.  956;  Cline  v.  Stock,  71  Neb.  70,  98  N.  W. 
Kansas  v.  Colorado,  185  U.  S.  125,  22  454,  102  N,  W.  265;  Bigelow  v. 
Sup.  Ct.  Rep.  552,  46  L.  Ed.  838;  Draper,  6  N.  D.  152,  69  N.  W.  570; 
Hudson  W.  Co.  v.  McCarter,  209  U.  Conant  v.  Deep  Creek  Co.,  23  Utah, 
S.  349,  28  Sup.  Ct.  Rep.  529,  52  L.  627,  90  Am.  St.  Rep.  627,  66  Pac.  188; 
Ed.  828,  14  Ann.  Cas.  560;  Missouri  Willey  v.  Decker,  11  Wyo.  496,  100 
v.  Illinois  etc.  Dist.,  180  U.  S.  208,  Am.  St.  Rep.  939,  73  Pac.  210;  Turley 
21  Sup.  Ct.  Rep.  331,  45  L.  Ed.  497;  v.  Furman  (N.  M.),  114  Pac.  278; 
Rickey  etc.  Co.  v.  Miller,  218  U.  S.  Slack  v.  Waleott,  3  Mason,  508,  Fed. 
258,  31  Sup.  Ct.  Rep.  11,  54  L.  Ed.  Caa.  No.  12,932  (Story,  J.)  ;  Mann- 
1032;  Saunders  v.  Bluefield  M.  W.  Co.,  ville  Co.  v.  -Worcester,  138  Mass.  91, 
58  Fed.  133;  Howell  v.  Johnson,  89  52  Am.  Rep.  261  (Holmes,  J.) ;  Ruck- 
Fed.  556;  Perkins  County  v.  Graff,  114  man  v.  Green,  9  Hun  (N.  Y.),  225; 
Fed.  441,  52  C.  C.  A.  243;  Hoge  v.  and  the  articles  in  8  Harvard  Law 
Eaton,  135  Fed.  411;  Anderson  v.  Review,  138;  2  Columbia  Law  Review, 
Bassman,  140  Fed.  22;  Morris  v.  364. 


362  (3d  ed.)     Pt.  III.     THE  LAW  OF  PEIOE  APPEOPRIATION.       §  341 

wants  of  men  other  than  the  mighty  barriers  which  the  Creator 
has  made  on  the  face  of  the  earth,"  says  Judge  Hallett.14 

In  Kansas  v.  Colorado,15  in  the  supreme  court  of  the  United 
States,  Mr.  Justice  Brewer  said  the  decisions  of  the  supreme  court 
of  the  United  States  are  ''practically  building  up  what  may  not 
improperly  be  called  interstate  common  law." 

(3d  ed.) 

§  341.     Same  —  Controversies     Between     States  —  Kansas      v. 

Colorado.16  —  The  rule  laid  down  in  Kansas  v.  Colorado  is  that, 
between  States,  an  equitable  apportionment  of  benefits  should  be 
maintained.  Kansas  sued  Colorado  in  the  supreme  court  of  the 
United  States  to  enjoin  appropriations  in  Colorado  on  the  Arkansas 
River,  claiming  that  the  loss  of  the  water  would  irreparably  injure 
Kansas  as  a  State,  and  as  a  riparian*  proprietor,  and  private 
riparian  proprietors  in  Kansas  (which  upholds  riparian  rights 
under  the  California  doctrine  while  Colorado  does  not).  The  deci- 
sion was  considered  from  the  point  of  injury  to  Kansas  as  a  State, 
aside  from  rights  of  itself  or  individuals  as  riparian  proprietors, 
its  prosperity  as  distinguished  from  its  property  rights  or  those 
of  its  citizens. 

It  was  held  that  Colorado  would  be  irreparably  injured  by  an 
injunction,  without  corresponding  benefit  to  Kansas.  In  fact,  the 
ultimate  prosperity  of  Kansas  may  in  fact  be  increased  by  the 
Colorado  diversions.  There  has  been  no  widespread  serious  injury 
to  Kansas  from  past  diversions,,  though  there  was  some  detriment. 
Kansas  herself  recognizes  the  right  of  an  upper  riparian  owner 
to  make  a  reasonable  use  of  a  stream  against  lower  proprietors,  and 
it  is  not  shown  that  the  Colorado  use  is  unreasonable,  regarding  the 
two  States  as  both  great  riparian  proprietors.  "At  the  same 
time  it  is  obvious  that  if  the  depletion  of  the  waters  of  the  river 
by  Colorado  continues  to  increase,  there  will  come  a  time  when 
Kansas  may  justly  say  that  there  is  no  longer  an  equitable  division 
of  benefits,  and  may  rightfully  call  for  relief  against  the  action 
of  Colorado,  its  corporations  and  citizens,  .in  appropriating  the 
waters  of  the  Arkansas  for  irrigation  purposes.  '  '  17 

n  Hoge  v.  Eaton  (C.  C.  Colo.),  135  16  206  LT.  S.  46,   27  Sup.  Ct.  Rep. 

Fed.  411.  655,  51  L.  Ed.  956.     Opinion  by  Mr. 


655552l°6LUEdS-95466'  **  ^  ^  **'  i  this  case,  see  supra, 

655,  51  L.  Ed.  956.  gec   182> 


§342  Ch.  16.     WHAT  CAN  BE  APPROPRIATED.       (3ded.)  363 

The  threatened  pollution  of  the  waters  of  a  river  flowing  between 
States,  under  the  authority  of  one  of  them,  thereby  putting  the 
health  and  comfort  of  the  citizens  of  the  other  in  jeopardy,  pre- 
sents a  cause  of  action  justiciable  under  the  constitution;  that  is, 
the  supreme  court  of  the  United  States  will  have  original  juris- 
diction if  one  of  the  States  brings  suit  against  the  other.18 

(3d  ed.) 

§  342.  Between  Riparian  Owners  in  One  State  and  Appro- 
priators  in  Another  State. — The  general  attitude  of  the  Federal 
courts  is  to  see  that  there  is  an  equitable  apportionment  of  benefits 
between  the  citizens  of  each  State  collectively  just  as  between  the 
States  themselves;  and  when  the  controversy  is  between  riparian 
owners  in  one  State  against  appropriators  in  another,  to  appor- 
tion the  water  (upon  some  basis  found  equitable  upon  the  facts) 
between  the  riparian  owners  as  a  body  and  the  appropriators  as  a 
body,  leaving  the  members  of  each  body  among  themselves  to  be 
governed  by  their  local  law.  This  formed  the  basis  of  the  decision 
in  Anderson  v.  Bassman.19  In  another  case  20  below  referred  to,  in 
Wyoming,  the  matter  was  mentioned  but  no  decision  was  given, 
no  riparian  rights  being  actually  involved. 

In  Anderson  v.  Bassman,  a  conflict  arose  among  several  hundred 
claimants  upon  a  river  flowing  from  California  into  Nevada,  the 
claimants  in  the  former  being  riparian  owners  under  the  Califor- 
nia law ;  in  the  latter,  appropriators  under  the  Nevada  law,  which 
does  not  recognize  riparian  rights.  Judge  Morrow,  in  the  United 
States  circuit  court,  simply  apportioned  the  water,  giving  each 
side  the  use  of  the  stream  for  a  specific  number  of  days,  the  rights 
of  the  individuals  on  each  side  among  themselves  to  be  governed 
by  their  local  law.21 

In  another  case  a  stream  flowed  from  Nebraska  to  Kansas  and 
it  was  said:  ''It  would  seem  that  the  fact  of  plaintiff's  residence 
beyond  the  border  of  this  State  [in  Kansas  where  his  mill  was], 
and  that  his  mill  is  located  there,  ought  not  to  deprive  him  of  any 
rights  which  the  laws  of  our  State  give  to  a  lower  riparian  owner. 
Any  attempt  of  our  legislature  to  discriminate  against  him  as  corn- 
is  Missouri  v.  Elinois  etc.  District,  19  140  Fed.  22. 

180  U.  S.  208,  21  Sup.  Ct.  Rep.  331,  20  Willey  v.   Decker,   11  Wyo.  496, 

45   L.   Ed.   497.     See   this    case   com-       100   Am.   St.  Rep.   939,   73   Pac.   211. 
rnented  on  in  Kansas  v.  Colorado,  185  21  See  supra,  sec.  310  et  seq.,  rea- 

U.  S.  125,  22  Sup.  Ct.  Rep.  552,  46      sonable  priority. 
L.  Ed.  838. 


364  (3d  ed.)     Pt.  III.     THE  LAW  OF  PEIOB  APPEOPEIATIOK       §  343 

pared  with  resident  mill  owners  would  be  promptly  declared  un- 
constitutional by  the  Federal  courts.  Any  such  determination  by 
the  courts  would  seem  to  be  equally  obnoxious  to  the  Federal  con- 
stitution. It  seems  clear  that  the  plaintiff  should  be  allowed  the 
same  standing  as  one  of  our  own  citizens  with  a  mill  on  this  side  of 
the  State  line,"22  both  States  being  followers  of  the  California 
doctrine  recognizing  the  riparian  rights  of  private  land  and  appro- 
priation for  public  land. 

In  the  late  case  of  Rickey  etc.  Co.  v.  Miller,23  in  the  supreme 
court  of  the  United  States,  the  decision  upon  a  question  of  pro- 
cedure below  referred  to  was  based  upon  the  principle  of  Kansas 
v.  Colorado,  that  riparian  owners  in  California  or  appropriators  in 
Nevada,  upon  the  Walker  River  crossing  the  boundary,  must 
deduce  any  right  they  may  have  from  the  law  of  their  respective 
States;  and  the  enforcement  of  either  right  beyond  the  boundary 
of  its  State  must  depend  upon  the  concurrence  of  the  other  State. 
Unless  the  upper  State  (California)  will  voluntarily  impose  condi- 
tions upon  its  citizens  in  favor  of  users  in  the  lower  State 
(Nevada),  the  latter  have  no  right  in  the  matter  other  than  to 
complain  that  the  lower  State  as  such  (and  not  merely  the  plain- 
tiff) is  not  receiving  an  equitable  share  of  the  benefit  of  the 
stream.24  This  seems  to  make  rights  upon  interstate  streams  a 
matter  of  interstate  relation,  reachable  by  creation  of  joint  com- 
missions between  the  States  interested,  to  establish  rules  for  such 
streams. 

(3d  ed.) 

§  343.  Between  Appropriators  in  Different  States. — As  in  the 
preceding  sections,  the  supreme  court  of  the  United  States  rules 
that  rights  upon  interstate  streams  are  a  matter  of  interstate  con- 
cern (similar  to  international  concerns,  regarding  the  States  as 
each  a  sovereign).26  Consequently  it  is  for  the  States  concerned 
to  see  that  each  receives,  by  joint  arrangement,  an  equitable 

22  Cline  v.   Stock,   71  Neb.   70,   98  25  It  has  been  said  that  "The  idea 
N.  W.  456,  102  N.  W.  265.  that  there  can  arise  any  international 

23  218  U.  S.  258,  31  Sup.  Ct.  Eep.  -water-right  question  in  the  case  of  an 
11.  appropriation    of    waters    of    an    un- 

24  The  private  right  is  "not  in  his  navigable     stream     cannot    be    main- 
own  right,  but  by  reason  of  and  sub-  tained."     Howell  v.  Johnson,  89  Fed. 
ordinate  to  the  rights  of  his   State,"  556.     That  seems  to  remain  true;  but 
the   court   says.     See   Turley   v.   Fur-  there  arise  interstate  questions  under 
man    (N.  M.),  114  Pac.  278.  the  supreme  court's  decisions. 


343 


Ch.  16.     WHAT  CAN  BE  APPROPRIATED.       (3d  ed.)  365 


apportionment  of  benefit  from  the  stream,  opening  the  way  for 
joint  commissions  between  the  States  to  govern  interstate  streams.1 

In  no  instance  yet  has  such  a  joint  commission  been  estab- 
lished ;  and  in  cases  simply  between  appropriators  alone  in  two 
States,  both  recognizing  the  law  of  prior  appropriation,  the 
courts  have  so  far  decided  upon  the  basis  that  priority  governs. 
Irrespective  of  State  lines,  the  courts  have  been  following, 
between  appropriators,  the  ordinary  rules  applicable  to  appro- 
priators under  the  law  of  prior  appropriation. 

A  chief  feature  of  the  law  of  appropriation  generally  has 
been  that  the  water-right  is  independent  of  the  place  of  use.2 
Should  a  State  by  statute  prohibit  domestic  waters  being 
diverted  within  it  for  use  beyond  its  borders,  an  appropriation 
for  that  purpose  could  not  be  made,3  and  a  declaration  of  State 
ownership  has  been  said  to  have  that  effect,4  but  that  is  not 
the  usual  way  of  regarding  such  a  declaration;  and  aside  from 
an  express  prohibition,  the  general  ruling  has  been  that  a 
diversion  may  be  made  in  one  State  for  use  in  any  other  State. 
Thus  a  case 5  involved  the  legality  of  the  issuance  of  certain 


1  Many    think    the    United    States 
should  control ;  but  the  decisions  of  the 
supreme  court  place  the  matter  with 
the  States. 

2  Supra,  sec.  281;    infra,  sec.  496. 

3  Hudson  County  Water  Co.  v.  Mc- 
Carter,    209   U.    S.    349,   28    Sup.   Ct. 
Rep.  529,  52  L.  Ed.  828,  14  Ann.  Cas. 
560,  affirming  McCarter  v.  Hudson  etc. 
Co.,   70  N.   J.   Eq.   695,   118   Am.   St. 
Rep.  754,  14  L.  R.  A.,  N.  S.,  197,  65 
Atl.  489,  10  Ann.  Cas.  116. 

In  February,  1911,  the  California 
legislature  passed  a  joint  resolution 
concerning  the  water  of  Lake  Tahoe, 
lying  on  the  boundary  of  California 
and  IVevada  (referring  to  a  proposi- 
tion to  divert  the  waters  to  Nevada), 
that  "The  State  of  California  claims 
to  own  the  major  portion  of  the 
waters  of  said  lake  and  protests 
against  the  diversion  of  said  waters, 
and  will  resist  the  diversion  contem- 
plated, as  an  invasion  of  the  rights  of 
the  people  of  this  State."  Assembly 
Joint  Resolution  No.  8.  The  project 
to  divert  the  waters  was  abandoned. 
The  same  legislature  enacted  a  statute 
forbidding  generally  the  diversion  of 
waters  to  points  outside  the  State 
(Cal.  Stats.  1911,  c.  104,  quoted  infra, 
sec.  1432) ;  and  the  Oregon  legislature 


has  just  enacted  that  its  State  engineer 
may  reject  appropriations  in  Oregon 
for  use  in  a  State  which  would  not 
allow  diversions  for  use  in  Oregon. 
Or.  Stats.  1911,  e.  224,  p.  404.  But 
this  Oregon  act  expressly  allows  ap- 
propriations for  use  outside  of  Oregon 
generally.  Nevada  replied  to  the 
California  Resolution  by  itself  resolv- 
ing that  diversion  of  the  Lake  water 
to  Nevada  should  be  allowed  "Not- 
withstanding the  protest  of  the  people 
of  California,  whose  claim  to  those 
waters  we  do  not  concede."  (Nev. 
Stats.  1911,  p.  453.)  Wyoming  passed 
an  act  authorizing  its  attorney  general 
to  take  steps  to  protect  Wyoming's 
rights  upon  interstate  streams.  Wyo. 
Stats.  1911,  c.  43,  p.  57. 

4  Bigelow     v.     Draper,      discussed 
supra,   sec.    172.     See,   also,   Saundefs 
v.  Bluefield  W.  W.  Co.,  58  Fed.  133, 
and  see  8  Harvard  Law  Review,  138, 
"Power  of  a  State  to  Divert  an  Inter- 
state Stream."     See,  also,  2  Columbia 
Law  Review,  364. 

5  Perkins  County  v.  Graff,  114  Fed. 
441,  52  C.  C.  A.  243    (in  the  United 
States  circuit  court  of  appeals  for  the 
eighth     circuit   on     appeal   from    the 
United    States    circuit    court    for    the 
district  of  Nebraska). 


366  (3d  ed.)     Pt.  III.     THE  LAW  OF  PKIOR  APPROPRIATION.       §  343 

bonds  by  Perkins  county,  Nebraska,  to  aid  in  the  construction 
of  an  irrigating  canal.  One  paragraph  of  the  syllabus,  as  pre- 
pared by  the  court,  reads  as  follows:  "Drawing  water  through 
a  canal  from  one  State  into  another  for  the  purpose  of  irrigat- 
ing lands  in  the  latter  State  is  not  necessarily  a  violation  of 
the  constitution,  laws,  or  policy  of  the  former  State,  although 
that  State  reserves  all  the  waters  for  itself  and  its  citizens,  so 
far  as  they  are  necessary  for  the  beneficial  uses  to  which  the 
State  and  its  citizens  apply  them."  And  in  the  opinion,  "When 
the  proposition  of  the  irrigation  company  is  carefully  and 
rationally  considered,  it  is  not  obnoxious  to  the  constitution, 
the  laws,  or  the  public  policy  of  the  State  of  Colorado,  and  these 
bonds  cannot  be  defeated  because  the  intention  of  the  company 
was  to  draw  the  waters  to  irrigate  the  lands  of  this  county  from 
without  the  State  of  Nebraska."  The  court  perceived  no  reason 
why  the  appropriation  of  water  might  not  be  made  for  the 
irrigation  of  lands  in  one  State  by  means  of  the  diversion  of 
water  from  a  stream  in  another  State  naturally  flowing  from  the 
latter  State  into  the  former.  Likewise  in  another  case 6  a 
declaration  of  State  ownership  was  held  immaterial.  In  this 
case  Sand  Creek  flowed  from  Colorado  into  Wyoming.  Plain- 
tiff diverted  and  used  the  water  in  Wyoming.  Defendant 
diverted  in  Colorado  and  injunction  was  granted,  and  the  fol- 
lowing was  held  to  be  the  law:  "The  right  to  divert  running 
waters  for  irrigating  lands  in  an  arid  country  is  not  controlled 
or  affected  by  political  divisions.  It  is  the  same  in  all  States 

through    which    the    stream    so    diverted    may    pass An 

appropriation  of  water  in  the  State  of  Wyoming  from  a  stream 
which  rises  in  Colorado  for  irigating  lands  in  Wyoming  is  valid 
as  against  a  subsequent  appropriation  in  Colorado,  from  the 

same  stream  for  irrigating  lands  in  Colorado In  a  suit 

by  settlers  in  Wyoming  on  a  stream  which  rises  in  Colorado 
to  restrain  the  diversion  of  water  from  such  stream  in  Colorado, 
complainants  need  not  aver  or  prove  that  they  have  conformed 
to  police  regulations  of  the  State  of  Wyoming  regulating  the 
distribution  of  water  in  that  State." 

A  careful  examination  of  the  question  of  conflict  of  laws  as 
applied  to  water-rights  was  made  in  the  valuable  case  of 
Willey  v.  Decker.7  The  facts  were  that  the  stream  flowed  from 

6  Hoge  v.  Eaton  (C.  C.  Colo.),  135  7  11   YvTyo.   496,    100   Am.   St.   Rep. 

Fed.  411.  939,  73  Pac.  210. 


§  343  Ch.  16.     WHAT  CAN  BE  APPEOPKIATED.       (3d  ed.)  367 

Montana  to  Wyoming,  and  the  appropriations  involved  were 
all  made  while  both  States  were  Territories,  when  there  was 
no  divided  territorial  sovereignty,  and  before  the  Wyoming 
statute 8  covering  the  subject  of  irrigation ;  whence  the  court 
found  it  unnecessary  to  consider  what  would  be  the  effect 
of  appropriations  made  under  the  present  laws.  Some  of 
the  plaintiffs  were  both  diverting  and  using  the  water  in  Wyom- 
ing, others  diverting  in  Wyoming  for  use  in  Montana.  Some 
of  the  defendants  (Oberreich)  diverted  in  Wyoming  for  use 
in  Wyoming,  others  diverted  in  Wyoming  for  use  in  Mon- 
tana, and  still  others  diverted  in  Montana  for  use  in  Wyom- 
ing. The  court  takes  pains  to  note  that  no  riparian  rights 
were  asserted  by  the  Montana  claimants,  and  that,  though  they 
might  have  made  such  claim,  it  was  unnecessary  to  consider  such 
rights  because  not  asserted.  The  court  also  notes  that  it  is 
unnecessary  to  decide  what  would  be  the  law  of  interstate  use 
outside  of  a  State  on  a  stream  entirely  within  it  and  not  an 
interstate  stream.  The  Wyoming  court  decided  in  Willey  v. 
Decker  that  Wyoming  and  Montana  appropriators  may  join  in 
a  Wyoming  diversion  to  irrigate  lands  lying  in  both  States; 
also  a  Montana  diversion  for  use  in  Wyoming  will  be  enjoined 
in  Wyoming  where  it  injures  other  Wyoming  users,  and  like- 
wise a  Montana  or  Wyoming  diversion  for  use  in  Wyoming  will 
be  enjoined  in  Wyoming  where  it  injures  others  who  divert  in 
Wyoming  though  their  use  is  on  Montana  lands.  The  court 
states  the  rule  generally  as  follows:  "The  separation  of  the 
lands  capable  of  irrigation  from  such  streams  by  State  lines  is 
of  no  consequence,  if  we  are  to  consider  merely  the  general 
principles  of  the  doctrine  and  the  reasons  that  called  it  into 
existence.  The  same  necessity  applies  to  the  lands  on  either 
side  of  the  line,  and  the  water  naturally  flows  in  the  channel 
of  the  stream  in  disregard  of  such  line  above  as  well  as  below 
it We  find  nothing,  therefore,  in  the  fundamental  prin- 
ciple of  the  doctrine  of  prior  appropriation  that  he  who  is 
first  in  time  is  first  in  right,  nor  in  the  reasons  that  led  to  the 
establishment  of  the  doctrine,  which  is  opposed  to  the  acquire- 
ment of  a  water-right  for  the  irrigation  of  lands  in  one  State 
by  the  diversion  of  the  water  at  a  point  in  another  State  from 
a  stream  flowing  in  both  States."  A  declaration  of  State 

8  Stats.  1886,  p.  294,  e.  61. 


368  (3d  ed.)     Pt.  III.     THE  LAW  OF  PEIOB  APPROPRIATION.       §  344 

ownership  in  Wyoming  was  here  also  held  immaterial,  as  it 
likewise  was  in  still  another  case.9 

"The  relative  rights,  therefore,  of  appropriators  of  the  water 
of  an  interstate  stream  are  the  same,  whether  the  appropria- 
tions are  all  in  the  same  State,  or  some  in  one  State  and  the> 
balance  in  another  State."10 

The  National  Irrigation  Act  u  contains  a  proviso  that  "nothing 
herein  shall  in  any  way  affect  any  right  of  any  State  or  of  the 
Federal  government  or  of  any  landowner,  appropriator,  or  user 
of  water  in,  to  or  from  any  interstate  stream  or  the  waters 
thereof." 

The  general  principle  of  substantive  law  deducible  from  the 
authorities  is  that  priority  governs  between  appropriators  irre- 
spective of  State  lines,  the  validity  of  each  appropriation  being 
governed,  in  testing  its  priority,  by  the  law  of  the  State  in  which 
the  diversion  is  made,  so  long  as  there  remains  an  equitable  enjoy- 
ment of  benefits  by  both  States.12 

(3d  ed.) 

§  344.  Difficulties  of  Procedure. — The  procedure  by  which 
the  foregoing  general  rules  are  to  be  enforced  gives  rise  to 
many  difficult  questions.  Perhaps  it  may  be  a  fair  deduction 
that  any  court  will  grant  relief  in  personam,  by  injunction  or 
personal  command,  against  all  parties  personally  served  with 
process  within  its  jurisdiction,  and  may,  as  incidental  to  the 
determination  of  the  propriety  of  granting  personal  relief, 
inquire  into  matters  of  title  to  water-rights  whose  situs  is  in 
another  jurisdiction;  but  that  no  court  will  grant  relief  in  rem, 
nor  relief  actually  determining  title  to  water-rights  whose 
situs  is  outside  the  jurisdiction,  such  as  a  decree  quieting  title. 

Belief  in  personam,  by  injunction,  has  been  granted  in  Montana 
enjoining  a  Montana  diversion  at  suit  of  an  appropriator  below 
stream  in  another  State — Wyoming.13  A  decree  apportioning 

9  Morris  v.   Bean,   146   Fed.    425;       for  the  lower  State.     Turley  v.  Fur- 
Bean  v.  Morris,  159  Fed.   651,  86  C.       man  (N.  M.),  114  Pac.  278. 

C    A.  519.  n  Infra,  sec.  1428. 

10  Taylor  v.  Hulett,  15  Idaho,  265,  "  f,ee  Ust  °f  cases  ^°>  86C'  340> 

94PaTV39-    ^  19  LVR  £'  N"  S"  »  Howell  v.    Johnson   (Mont.),  89 

53o      It    IB,    however,    for   the   upper       Fed     ^      M      ig    y    ^    (Mo'nt>) 

State  where  the  point  of  diversion  Hg  Fed  '  425  affirmed  in  vBean  £ 
lies,  .to  grant  permit  for  its  use;  not  Morri  159  Fe'd>  651  g6  a  c  A  519 


§  344:  Ch.  16.     WHAT  CAN  BE  APPEOPRIATED.       (3d  ed.)  369 

water  between  California  and  Nevada  claimants  has  been  ren- 
dered in  the  United  States  circuit  court  for  the  northern  district 
of  California  upon  a  stream  where  the  acts  complained  of  were 
done  in  California.14  In  these  cases  the  acts  enjoined  had  been 
done  within  the  jurisdiction  of  the  court,  and  to  bring  cases 
within  that  class,  it  is  held  that  where  a  ditch  runs  from  one 
State  into  another,  a  diversion  in  the  upper  State  constitutes, 
by  keeping  the  ditch  dry  throughout  its  course,  an  injury  com- 
mitted in  the  lower  State  also,  constituting  a  wrongful  act 
done  in  the  lower  State  which  the  lower  court  may  enjoin  as 
an  act  done  within  its  own  jurisdiction.15  It  seems,  however, 
that  it  is  not  necessary  that  the  act  to  be  enjoined  be  actually 
one  committed  within  the  court's  jurisdiction;  if  it  has  per- 
sonal jurisdiction  over  the  parties,  it  may  enjoin  even  acts 
committed  in  another  jurisdiction  (though  punishment  for  dis- 
obedience can  be  made  only  by  retaining  personal  custody  over 
the  party  or  his  property  by  sequestration,  or  by  comity  of  the 
neighboring  court).  Thus,  in  the  Salton  Sea  Cases,  arising"  out 
of  the  break  of  the  Imperial  Canal  in  Southern  California,  the 
Colorado  River  had  been  dammed  in  Mexico  and  its  waters  car- 
ried by  the  canal  into  California  for  irrigation.  Because  of 
damage  from  the  flooding  of  California  lands  owing  to  a  break 
of  the  canal,  an  injunction  was  awarded  in  California  against 
the  canal  owners,  restraining  them  from  allowing  the  water  so  to 
flow,  though  this  involved  the  doing  of  some  affirmative  acts 
in  Mexico.16  A  court  of  equity  may  issue  its  commands  upon 
the  person  of  all  parties  over  whom  it  has  obtained  actual  per- 
sonal jurisdiction,  whether  this  requires  doing  or  refraining  from 
acts  within  or  outside  its  territorial  jurisdiction,  though 
enforcement  in  the  latter  case  is  more  difficult. 

But  the  establishment  of  the  validity  of  rights,  or  decrees  in 
rem,  as  distinguished  from  personal  relief,  or  decrees  in  personam, 
can  be  made  only  in  the  State  where  the  water-right  has  its 
situs.  The  situs  of  a  riparian  right  is  where  the  riparian  land 

14  Anderson  v.  Bassman,   140  Fed.  York  for  injury  to  New  York  lands 
22.  caused   by  the  passage  over  them  of 

15  Willey  v.  Decker,   11   Wyo.  496,  noxious  vapors  created  in  New  Jersey. 
100  Am.  St.  Eep.  939,  73    Pac.  210.  i«  The  Salton  Sea  Cases.  172  Fed. 
Cf.   Ruckman   v.   Green,   9   Hun,   225,  820,  97  O.  C.  A.  242. 

holding   that   an   action   lies   in   New 
Water  Bights — 24 


370  (3d  ed.)     Pt.  III.     THE  LAW  OF  PRIOR  APPROPRIATION.       §  344 

lies.17  The  situs  of  a  right  by  appropriation  would  seem  to  be 
where  the  point  of  diversion  lies,  that  being  where  the  appro- 
priator  has  a  right  to  receive  the  usufruct  of  the  natural 
resource.17*  So  it  has  been  held  that  courts  of  one  State  cannot 
quiet  title  in  favor  of  water-right  diversions  made  in  another 
State.  Though  an  equitable  action  to  quiet  title  is  only  one  in 
personam,  yet  it  partakes  of  the  nature  of  an  establishment  of 
right,  and  is  usually  for  this  purpose  treated  as  equivalent  to 
a  decree  in  rem,  to  be  rendered  only  by  the  court  within  whose 
jurisdiction  the  point  of  diversion  lies. 

In  Conant  v.  Deep  Creek  Co.,18  all  parties  both  diverted  and 
used  the  water  outside  the  territorial  jurisdiction  of  Idaho, 
where  the  decree  under  consideration  was  rendered.  The 
Utah  court  acknowledged  the  right  of  the  Idaho  court,  on  obtain- 
ing personal  jurisdiction,  to  act  by  injunction,  but  denied  the 
efficacy  of  the  decree  in  question  quieting  title,  saying:  "The 
Idaho  courts,  therefore,  have  ample  and  complete  jurisdiction 
to  protect  the  rights  of  respondents  to  have  the  water  which 
they  have  appropriated,  and  which  they  divert  in  Utah,  flow 
through  the  channel  of  the  stream,  and  to  limit  and  determine 
the  rights  of  the  Idaho  proprietors  with  reference  thereto." 
The  substantial  effect  of  the  decision  was  that  the  Idaho  court 
was  not  vested  with  jurisdiction  to  determine  as  between  them- 
selves the  right  of  the  several  appropriators  who  diverted  water 
from  the  stream  in  Utah  and  used  the  same  for  irrigating  lands 
in  that  State,  and  to  quiet  their  titles  thereto.  In  this  connec- 
tion, affirming  the  same  point,  the  Wyoming  court  says  in  Willey 
v.  Decker:  "If,  therefore,  a  decree  adjudicating  the  various 
priorities  of  the  parties  would  operate  as  a  decree  quieting  the 
title  to  the  lands  of  plaintiffs  Willey  and  Ellison  in  another 
State,  it  is  quite  obvious  that  it  would  be  beyond  the  jurisdic- 
tion of  the  court.  But,  for  the  reasons  stated,  we  shall  decline 

17  Under    the    California    constitu-  where   lands   are   to   be   irrigated,   al- 

tion,  an  action  to  quiet  title  must  be  though  the  stream  flows  into  the  lat- 

brought    in     the     county    where     the  ter;   and  the  New  Mexico  Territorial 

riparian  land  lies.     Miller  v.  Madera  Engineer    has    no    jurisdiction    over 

etc.  Co.,  155  Gal.  59,  99  Pac.  502,  22  licensing     such     Colorado     diversions. 

L.  R.  A.,  N.  S.,  391.  That    is    for    Colorado    to    do,    it    is 

I7a  The   sitiis   of   an   appropriative  held   in   Turley  v.   Furman    (N.   M.), 

water-right  is  in  the  State  where  the  114  Pac.  278. 

point  of  diversion  lies  (Colorado),  and  is  23   Utah,   627,  90   Am.   St.   Rep. 

not  in  the  lower  State  (New  Mexico),  721,  66  Pac.  188. 


{ 344  Ch.  16.     WHAT  CAN  BE  APPEOPEIATED.       (3d  ed.)  371 

at  this  time  to  go  into  the  matter  further."19  It  has  been  held 
that  Colorado  will  not  decree  rights  for  use  in  New  Mexico 
though  diverted  in  Colorado,20  stating  that  the  question  was  of 
first  impression  in  Colorado. 

While  it  is  thus  generally  stated  that  courts  of  one  jurisdic- 
tion will  not  undertake  to  establish  the  validity  of  water-rights 
whose  situs  (the  point  of  diversion,  in  cases  of  appropriation) 
lies  in  another  State,  yet  it  has  been  held  that  the  court  may 
examine  into  such  rights  to  inform  itself,  when  called  upon  to 
give  merely  personal  or  local  relief.  Thus,  where  a  court  (in 
Nevada)  has  obtained  personal  jurisdiction  over  all  parties, 
and  an  action  is  brought  to  quiet  title  to  rights  within  its 
jurisdiction  (Nevada)  against  claims  outside  its  jurisdiction 
(above  stream  in  California),  and  the  outside  claimants  file  a 
cross-complaint  setting  up  their  rights  and  asking  to  have  them 
quieted,  the  court  in  Nevada  has  power  to  quiet  title  to  the 
Nevada  rights,  but  not  to  the  California  rights;  yet,  in  order 
to  advise  its  discretion  regarding  the  validity  of  the  Nevada 
claims  it  may  examine  into  the  California  defense,  though  this 
involves  passing  upon  the  California  claims.  Such  action  can- 
not settle  the  California  rights  even  if  found  valid,  but  can  be 
the  basis  for  granting  or  refusing  a  decree  quieting  title  in 
favor  of  the  Nevada  claims.  This  is  the  holding  in  Rickey  v. 
Miller.21  It  was  further  therein  held  that  after  the  Nevada 
Federal  court  had  entertained  the  case  upon  this  ground,  the 
Californians  would  be  enjoined  from  beginning  a  suit  in  'the 
California  State  court  to  get  the  decree  quieting  title  which 
the  court  in  Nevada  declares  itself  unable  to  give  him  even  if 
entitled  thereto.  The  case  was  affirmed  in  the  supreme  court  of 
the  United  States.22 

This  case  has  been  followed  recently  in  Idaho.  In  Taylor  v. 
Hulett23  appellant's  appropriation,  diversion,  and  place  of  use 

19  Willey  v.   Decker,   11  Wyo.   496,  fornia,    to     ascertain    and    determine 
100  Am.  St.  Rep.  939,  73  Pac.  210.  whether    such    appropriation    is    prior 

20  Lamson  v.  Vailes,  27  Colo.  201,  and   paramount   to   the   complainant's 
61  Pac.  231.  appropriation,  and,  if  not,  then  to  set- 

21  152   Fed.   14,   81    C.   C.   A.   207,  tie  and  quiet  complainant's  title  and 
saying:   "Though  the  Nevada  court  is  rights     thereto."     Approved     in     218 
not  authorized  or  empowered  to  settle  U.  S.  258,  31  Sup.  Ct.  Rep.  11. 

the  rights  of  the  parties  in  the  State  22  Rickey    etc.    Co.    v.    Miller,    218 

of  California,  it  may  look,  neverthe-  U.  S.  258,  31  Sup.  Ct.  Rep.  11. 

less,   under  the   defensive    answer,   to  23  15    Idaho,   265,   97    Pac.    39,    19 

the  appropriation  in  the  State  of  Cali-  L.  R.  A.,  N.  S.,  535. 


372  (3d  ed.)     Pt.  III.     THE  LAW  OF  PRIOR  APPROPRIATION.       §  345 

were  all  within  Idaho.  The  respondents  were  up  the  stream, 
above  appellant,  and  their  diversion  and  place  of  use  were  all 
within  the  State  of  Wyoming.  Held,  the  Idaho  courts  after  per- 
sonal service  of  process  on  the  respondents  and  their  appearance 
in  the  court  can  determine  the  priorities  between  the  parties, 
and  adjudicate  and  decree  appellant's  rights,  and  enjoin  respond- 
ents from  interfering  with  such  rights.  The  fact  that  respond- 
ent's claim  lies  in  Wyoming  does  not  oust  the  Idaho  court  of 
jurisdiction  to  quiet  title  to  the  Idaho  rights  against  him,  and 
to  enjoin  him,  though  such  injunction  can  be  enforced  only  by 
getting  an  ancillary  decree  from  the  courts  of  Wyoming,  where 
he  resides.  The  court  said:  "This  action,  to  quiet  appellant's 
title,  should  be  maintained  in  the  jurisdiction  to  which  the  res 
or  subject  matter  is  situated.24  If,  however,  in  ascertaining  and 
determining  appellant's  rights,  it  becomes  necessary  to  also 
inquire  into  and  ascertain  the  rights  and  priorities  of  the 
respondents  on  the  same  stream  as  a  defensive  issue,  that  certainly 
can  and  will  be  done  by  a  court  of  equity,  although  the  res  or 
subject  matter  involved  in  the  issue  and  constituting  the  defense 
be  situated  beyond  the  State  line  and  in  another  jurisdiction."25 
Unless  some  such  rule  were  adopted,  it  would  be  impossible  to 
decree  rights  or  quiet  title  upon  interstate  streams,  since  the 
jurisdiction  of  Federal  districts  as  well  as  State  courts  is  usually 
separated  by  State  lines,  and  there  would  be  no  single  court  hav- 
ing jurisdiction  over  both  sets  of  claims  territorially. 

(3d  ed.) 

§  345.  Conclusions  Regarding  Interstate  Streams. — The  mat- 
ter is  now  in  a  stage  of  development,  and  any  conclusions  must 
be  tentative  only.  We  suggest  the  following  drawn  from  the 
foregoing  authorities: 

(a)  Between  States,  each  is  entitled  to  have  for  its  prosperity 
an  equitable  apportionment  of  benefits  from  an  interstate  stream. 
Consequently,  control  of  interstate  streams  is  likely  to  gravitate 
toward  the  formation  of  joint  commissions  between  the  States 
to  supervise  their  use  and  make  regulations. 

24  Citing  Carpenter  v.  Strange,  141  Rep.  802,  15  Atl.  379,  1  L.  R.  A.  79. 

U.  S.  87,  11  Sup.  Ct.  Rep.  960,  35  L.  25  Citing  Willey  v.  Decker,  11  Wyo. 

Ed.  640;   Nelson  v.  Porter,  50  N.  J.  496,   100   Am.   St.   Rep.   939,   73   Pac. 

L.     324,     15     Atl.     375;     Lindley    v.  210;    Rickey  Land  etc.   Co.   v.   Miller 

O'Reilly,  50  N.  J.  L.  636,  7  Am.  St.  et  al.,  152  Fed.  11,  81  C.  C.  A.  207. 


§  346  Ch.  16.     WHAT  CAN  BE  APPROPKIATED.       (3d  ed.)  373 

(b)  Between   riparian   owners   in  one   State  having  rights   at 
common  law  and  appropriators  in   another   State  having  rights 
under  the  law  of  appropriation,  an  equitable  apportionment  will 
be  made  between  the  two  as  classes,  leaving  each  individual  to 
share  in  the  use  apportioned  to  his  class  according  to  the  law  of 
the  State  wherein  his  right  lies. 

(c)  Between  appropriators  in  different  States,  priority  governs 
irrespective  of  State  boundaries.     The  separation  of  a  stream  by 
State  lines  does  not  lessen  the  right  to  make  an  appropriation 
upon  it  in  a  State  where  appropriation  is  allowed,  and  an  appro- 
priation  thus    made   is,    in   the    absence    of    express    prohibitory 
statute,  independent  of  the  place  to  which  the  water  is  conducted, 
though  it  be  outside  the  State ;  provided  there  remains  an  equitable 
division  of  benefits  between  the  two  States. 

(d)  Relief  of  a  personal  nature   (as,  for  example,  injunction) 
will  be  given  by  the  court  of  any  State  which  has  obtained  per- 
sonal jurisdiction  over  the  parties  to  the  controversy,  whether  this 
requires   doing  or   refraining   from   doing   acts   within   or   with- 
out the  court's  territorial  jurisdiction. 

(e)  Relief  of  a  real  nature,  or  in  rem,  or  as  final  adjudication 
of  rights  (and  quieting  title  is  so  regarded)  will  not  be  granted 
by  a  court  with  regard  to  water-rights  whose  situs  is   outside 
its  territorial   jurisdiction,   but   the   court  will   give   such   relief 
regarding  all  rights  whose  situs  is  within  its  jurisdiction.     And 
further,  as  incidental  to  quieting  title  within  its  jurisdiction,  or 
to  granting  purely   personal  relief,   the  court  may   inquire  into 
water-rights  whose  situs  is  outside,  and  advise  itself  thereon;  and 
even  though  it  cannot  settle  the  validity  or  invalidity  thereof, 
may  make  its  conclusion  concerning  them  the  basis  of  discretionary 
action  regarding  the  relief  to  which  the  inquiry  was  incidental. 


C.     STANDING   AND  DIFFUSED  WATEE. 

(3d  ed.) 

§  346.  Lakes  and  Ponds.1 — Whether  waters  of  a  lake  or  pond 
can  be  appropriated  is  seldom  discussed.  The  cases  almost 
invariably  speak  only  of  water  flowing  in  watercourses.2 

The  recent  statutes  in  the  arid  States  usually  expressly  include 
lakes,  or  else  contain  such  general  words  as  "all  waters  of  the 

i  See,    also,    infra,,  sec.    728.     See  2  Such  also  is  the  language  of  Cal. 

Idaho  Stats.  1911,  c.  230.  Civ.  Code,  sec.   1410. 


374  (3d  ed.)     Pt.  III.     THE  LAW  OF  PEIOB  APPEOPEIATION.       §  346 

State,  "or  "all  streams  and  water  sources, ' '  which  would  cover 
the  matter.  In  California,  however,  the  statute 3  speaks  only  of 
streams  and  running  water.  However,  riparian  rights  attached 
at  common  law  to  lakes  and  ponds.  The  law  of  appropriation  is 
assumed  likewise  to  apply  to  them,  though  the  point  is  not 
specifically  raised.4  It  is  probable  that  lake  water 'may  be  appro- 
priated in  California  as  elsewhere,  though  not  mentioned  in  Civil 
Code,  section  1410,  for  the  California  court  has  said  (in  another 
connection)  that  that  section  is  not  exhaustive  of  the  kinds  of 
water  that  can  be  appropriated.5  The  California  court  has  said 
since  the  above  was  written  (in  the  first  edition)  :  "We  think  the 
better  doctrine  in  respect  to  the  character  of  a  stream  from  which 
the  statute  provides  for  appropriations  is  that  it  is  not  necessary 
that  the  stream  should  continue  t'o  flow  to  the  sea,  or  to  a  junction 
with  some  other  stream.  It  is  sufficient  if  there  is  a  flowing  stream ; 
and  the  fact  that  it  ends  either  in  a  swamp,  in  a  sandy  wash  in 
which  the  water  disappears,  or  in  a  lake  in  which  it  accumulated 
upon  the  surface  of  the  ground,  will  not  defeat  the  right  to  make 
the  statutory  appropriation  therefrom,  and  we  can  see  no  reason 
why  the  appropriation,  in  such  a  case,  may  not  be  made  from  the 
lake  in  which  the  stream  terminates,  and  which  therefore  consti- 
tutes a  part  of  it,  as  well  as  from  any  other  part  of  the  water- 
course."6 Upon  a  second  appeal  it  was  held  (modifying  the 
above  somewhat)  to  be  a  question  of  fact  whether  the  lake  was 
part  of  the  stream,  and  not  one  of  law.7 

3  Civ.  Code,  1410.  rights,  it  was  said   (Turner  v.  James 

4  Weaver  v.  Eureka  etc.  Co.,  15  Cal.  Canal   Co.    (1909),    155  ;Cal.    82,    132 
271,    and   Osgood   v.    El   Dorado    etc.  Am.  St.  Rep.  59,  99  Pac.  520,  22  L. 
Co.,    56    Cal.    571;    a    dictum   to    the  E.  A.,  N.  S.,  401,  17  Ann.  Cas.  823): 
same  effect  appears  in  Baxter  v.  Gil-  "In  Duckworth  v.  Watsonville  etc.  Co., 
bert,  125  Cal.  580,  58  Pac.   129,  374.  supra,    the    question    was    suggested 

5  Katz  v.  Walkinshaw,  141  Cal.  116,  whether  the  right  existed  to  make  an 
99  Am.  St.  Eep.  35,  70  Pac.  663,  74  appropriation  of  the  waters  of  a  lake, 
Pac.  766,  64  L.  E.  A.  236.     The  ap-  under    the    code    which    refers    only 
propriation   of   the   waters   of  a   lake  to   'running   water'    (Civ.    Code,   sec. 
was  upheld  in   Cole   v.   Eichards   Irr.  1410),   but   as   it   was   held   that   the 
Co.,  27  Utah,  205,  101  Am.  St.  Eep.  finding    that    there     was     a     running 
£62,  75  Pac.  376,     See,  also,  Pomeroy  stream  was  sustained  by  the  evidence, 
on     Eiparian     Rights,     sec.     51.     As-  there  was  no  decision  further  than  to 
sumed     in     Kinney     on     Irrigation,  hold  that   it  was  not   necessary  to  a 
passim.  right  of  appropriation  under  the  code 

6  Duckworth  v.  Watsonville  etc.  Co.,  that  the  stream  should  run  to  the  sea 
150  Cal.  520,  89  Pac.  338.  or    to    a    junction  with    some    other 

i  Duckworth  v.  Watsonville  Co.,  158  watercourse.  This  point  has  no  bear- 

Cal.  206,  110  Pac.  927.  ing  on  riparian  rights.  It  was  also 

In  a  case  involving,  not  the  law  of  held  that  one  owning  land  upon  an 

appropriation,  but  the  law  of  riparian  outlet  of  a  lake,  but  not  on  the  lake 


§  347  Ch.  16.     WHAT  CAN  BE  APPROPRIATED.       (3d  ed.)  375 

As  to  rights  in  artificial  ponds  or  reservoirs  caused  by  damming 
a  river,  reference  is  made  to  a  previous  chapter.8 

Lakes  differ  from  streams  in  the  feature  that  one  is  standing 
while  the  other  is  running.  For  streams,  a  flow  is  the  chief 
characteristic ;  for  lakes,  a  stand  or  head.  If  the  law  of  priority 
is  to  be  applied  to  lakes,  subsequent  surplus  appropriations  must 
rest  upon  the  question  how  they  affect  the  prior  claimant's  stand 
or  head  of  water,  not  its  flow.  He  has  a  right  to  prevent  any 
subsequent  taking  which  would  lower  the  head  below  the  intake 
of  his  pumps  or  otherwise  increase  the  cost  of  pumping.9 

(3d  ed.) 

§  347.  Flood  or  Storm  or  Surface  Waters. — In  many  parts  of 
the  West — especially  in  the  desert  regions — rainfall  is  scanty 
while  -evaporation  is  great.  Most  of  the  rain  descends  in  very 
heavy  Iccal  storms  (frequently  heavy  thunderstorms),  which  give 
rise  to  short-lived  torrents,  sometimes  of  great  volume.  As  a 
result  a  dry  wash  will  suddenly  fill  with  a  stream  twenty  feet 
deep,  advancing  in  successive  high  waves,  the  flow  lasting  a  few 
hours,  then  rapidly  subsiding;  and  perhaps  the  wash  would  not 
contain  water  again  for  several  years.  In  such  occurrences,  the 
water  will  spread  out  when  it  reaches  the  bottom  of  the  wash  and 
flood  much  lowland.10 

The  decisions  are  in  conflict  upon  the  subject  of  whether  over- 
flow or  flood  waters  entering  a  channel  carrying  a  permanent 
river  are  to  be  treated  as  surface  waters  or  as  part  of  the  water-' 
course,  says  the  Montana  court,11  adding  that  in  Indiana,  Missouri, 
Kansas,  Nebraska  and  Washington  the  former  is  held,12  and  in 

itself,  which  outlet  was  dry  for  a  con-  Recent  statutes  require  consent  of 

siderable   part  of  each   season,   could  State    Engineer    before    drainage    of 

not  take  water  from  the  lake  above,  lakes  is  permitted.     Neb.  Stats.  1909, 

during  such  dry  period,  to  use  on  his  p.  525;  S.  D.  Stats.  1909,  c.  102. 

land  upon  the  outlet  below.     This  was  10  The  writer  witnessed  such  a  flood 

not,  as  counsel  suggests,  based  on  the  in  Tonopah,  Nevada,  some  years  ago, 

fact  that  there  was  no  flowing  water  which,  after  leaving  the  hills,  reached 

in   the   outlet   at   such   times,   but   on  a   flat  where   the   town   lies  and  sent 

the    fact    that    it    then    contained    no  a    stream    of    water    two    feet    deep 

water  at  all."  down  the  main  street.     It  disappeared 

8  Supra,  sec.  32.  inside  of  two  days,  but  it  was  a  week 

9  Duckworth    v.    Watsonville     Co.,  before  the  railway  washouts  could  be 
158   Cal.   206,   110   Pac.   927.     Unless  repaired    and    fresh    provisions    could 
the   subsequent   appropriator   compen-  be  brought  into  camp. 

sates    him    (by    condemnation    under  n  Fordham   v.   Northern   Pac.   Ry. 

power  of  eminent  domain)  for  expense  Co.,  30  Mont.  421,  104  Am.  St.  Rep. 

of    changing    apparatus.     Salt    Lake  729,  76  Pac.  1040,  66  L.  R.  A.  556. 
City  v.  Gardner  (Utah),  114  Pac.  147.  12  Citing  cases. 


376  (3d  ed.)     Pt.  III.     THE  LAW  OF  PRIOR  APPROPRIATION.       §  347 

Georgia,  Ohio,  Iowa,  Virginia,  Minnesota,  South  Carolina,  Wis- 
consin and  Tennessee  the  latter  is  held,13  while  in  California  prob- 
ably the  former.14  The  Montana  court  holds  that  it  is  a  ques- 
tion of  fact  in  each  case,  depending  chiefly  upon  whether  con- 
tinuity is  or  is  not  permanently  broken.  The  California  rule  has, 
however,  been  recently  held  to  be  the  latter — the  flood  water  is 
part  of  the  stream — though  the  decisions  hitherto  conflicted.15 
The  California  court  recently  said:  "And  when  such  usually 
recurring  floods  or  freshets  are  accustomed  to  swell  the  banks  of 
a  river  beyond  the  low-water  mark  of  dry  seasons  and  overflow 
them,  but  such  waters  flow  in  a  continuous  body  with  the  rest  of 
the  water  in  the  stream  and  along  well-defined  boundaries,  they 

constitute  a  single  natural  watercourse "Where  the  stream 

usually  flows  in  a  continuous  current,  the  fact  that  the  water  of 
the  stream,  on  account  of  the  level  character  of  the  land,  spreads 
over  a  large  area  without  apparent  banks  does  not  affect  its 
character  as  a  watercourse. ' ' 16 

The  overflow  waters  of  a  stream,  especially  where  they  run  in  a 
well-defined  course,  and  again  unite  with  the  stream  at  a  lower 
point,  must  be  regarded  as  a  part  of  the  watercourse  from  which 
the  overflow  comes,  and  cannot  be  regarded  or  dealt  with  as  surface 
water.17  So  it  has  been  held  that,  when  surface  waters  collect  into 
a  pond,  which  is  of  a  permanent  character,  they  cease  to  be  surface 
waters.18  Even  surface  water  becomes  a  natural  watercourse  at 
the  point  where  it  begins  to  form  a  reasonably  well-defined  chan- 
nel, with  bed,  and  banks,  or  sides,  and  current,  although  the  stream 
itself  may  be  very  small  and  the  water  may  not  flow  continuously.19 
The  question  is  not  to  be  determined  alone  from  the  origin  of  the 
water,  for  streams  may  be  composed  wholly  of  surface  water  or 
that  which  falls  in  the  shape  of  rain  or  snow.20 

13  Citing  cases.  17  Brinegar  v.  Copass,  77  Neb.  241, 

14  See  the  leading  English  case  of       109  N.  W.  173. 

Broadbent    v.    Ramsbotham,    11    .Ex.  18  Schaefer  v.  Marthaler,  34  Minn. 

602.  487,  .57  Am.  Rep.  73,  26  N.  W.  726; 

is  Infra,  riparian  rights,   sec.   825,  Alcorn    v.    Sadler,    66    Miss.    221,    5 

where  the  matter  is  chiefly  involved.  South.  694;  Rait  v.  Furrow,  74  Kan. 

16  Miller   v.    Madera    etc.   Co.,    155  101,  85  Pac.  934,  6  L.  R.  A.,  N.  S., 

Gal.    59,   99   Pac.   502,    22   L.    R.   A.,  157. 

N.   S.,  391;   accord,  Town  of   Jeffer-  19  Churchill  v.  Lauer,  84  Cal.   233, 

son  v.   Hicks,  23   Okl.   684,   102   Pac.  24  Pac.  107. 

79;    Broadway   Mfg.    Co.    v.   Leaven-  20  Rait    v.    Furrow,    74    Kan.    101, 

worth    Co.,    81    Kan.    616,    106    Pac.  85  Pac.  934,  6  L.  R.  A.,  N.  S.,  157; 

1034.     See  Cook  v.  Seabord  etc.   Co.,  Palmer  v.  Waddell,  22  Kan.  352. 

107  Va.  32,  122  Am.  St.  Rep.  825,  57  "When    the     surface    waters    which 

S.  E.  564,  10  L.  R.  A.,  N.  S.,  966.  fall    upon    the    watershed    of    Pond 


§  348  '  Ch.  16.     WHAT  CAN  BE  APPEOPEIATED.       (3d  ed.)  377 

The  foregoing  is  given  as  a  matter  of  definition,  upon  which 
cases  seem  fairly  agreed ;  namely,  that  after  storm  or  flood  waters 
have  once  reached  the  channel  of  a  living  stream  they  are  a  part 
of  the  watercourse,  and  cannot  be  taken  out  of  the  channel  above 
lower  claimants  on  the  watercourse  otherwise  than  any  other  part 
of  the  stream  could. 

(3d  ed.) 

§  348.    Drainage  of  Surface  Water. — But  while,  having  once 

reached  the  channel  of  a  living  stream,  the  storm  or  flood  or  seep- 
age waters  are  a  part  of  the  watercourse,  yet  until  they  actually 
so  reach  it,  or  if,  having  reached  a  natural  depression,  there  is 
never  any  regular  flow  therein  so  as  to  constitute  a  watercourse, 
the  foregoing  does  not  apply ;  the  waters  are  simply  surface  water. 
Such  water  is  not  governed  by  the  law  of  watercourses.  With 
respect  to  such  casual  water  in  no  definite  channel  (or,  if  in  a 
channel,  with  no  definite  flow),  the  question  is  usually  how  to  get 
rid  of  it.  In  this  respect  the  rule  is  different  at  civil  law  and  at 
common  law;  and  some  jurisdictions  adopt  one  of  these  rules  and 
some  the  other.21  The  civil  law  is  that  the  rights  of  the  parties 
are  determined  by  natural  situation,  so  that  the  owner  of  land  at 
a  higher  level  has  an  easement,  over  the  lower  land  of  a  neighbor, 
to  have  the  surface  water  pass  off  naturally,  which  the  lower  owner 
must  not  obstruct;  the  common  law  recognizes  no  such  easement, 
but  calls  surface  water  a  " common  enemy"  which  the  lower  owner 
may  keep  from  coming  from  upper  lands,  and  which  either  owner 
may  get  rid  of  as  best  he  can  (provided,  under  either  rule,  there 
is  no  artificial  accumulation  thereof  discharged  upon  another's 
land).22 

Creek  ultimately  gather  and  collect  in  providing    for    the    organization    of 

the  channel  of  that  stream,  they  lose  storm  water  districts, 

their  character  as  surface  water  and  21  See  Ogburn  v.  Conners,  46  Cal. 

become  the  waters  of  a  watercourse,  346,  13  Am.  Rep.  213,  and  McDaniel 

and  when  they  overflow  the  bank  op-  v.    Cummings,    83    Cal.    515,    23    Pac. 

posite  the  townsite  and  pursue  a  gen-  795,    8    L.    R.    A.    575,    setting    this 

eral  course  back  into  the  same  water-  forth. 

course,    or   into    another   watercourse,  22  Arizona. — The  common  law,  sem- 

although  they  do  not  follow  a  chan-  ble,  Kroeger  v.  Twin  Buttes  etc.  Co. 

nel  with  well-defined  banks,  they  con-  (Ariz.),  114  Pac.  553. 

tinue  flood  waters  of  the  watercourse  California  adopts  the  civil-law   rule, 

and    do    not    become    surface    water."  having     done     so     by     inadvertence, 

Town  of  Jefferson  v.   Hicks    (1909),  but  holding   to  it  now  as  a   rule   of 

23  Okl.  684,  102  Pac.  79.  property.     Ogburn  v.  Conners,  46  Cal. 

Protection  of  lands  from  overflow.  346,  13  Am.  Rep.  213;  McDaniel  v. 
See  CaL  Stats.  1909,  chapter  222,  '  Cummings,  83  Cal.  515,  23  Pac.  795, 


378  (3d  ed.)     Pt.  III.     THE  LAW  OF  PRICE  APPROPRIATION.       §  348 


The  common-law  rule  that  a  man  may  rid  himself  of  surface 
water  as  best  he  may  is  being  to-day  modified  by  a  qualification 
that  the  mode  adopted  must  be  a  reasonable  use  of  his  own  land 
and  not  arbitrary  or  excessive,  similarly  to  the  new  rule  regarding 
diffused  percolating  water.23  Another  recent  tendency  is  to  give 
the  State  Engineer  supervision  over  drainage.24 

Questions  of  drainage  were  formerly  of  infrequent  occurrence 
in  the  West.25  But  to-day,  paradoxical  as  it  may  seem,  irrigation 
is  bringing  them  into  importance;  for  irrigation  water  accumu- 
lates upon  lower  lands  by  seepage  from  higher  lands,  and  in  ex- 
tensively irrigated  regions  the  lower  lands  are  becoming  water- 
logged, causing  a  serious  problem.26  Consequently  statutes  are 


8  L.  R.  A.  575;  Wood  v.  Moulton,  146 
Cal.  317,  80  Pac.  92;  Cederburg  v. 
Dutra,  3  Cal.  App.  572,  86  Pac.  838; 
Meigs  v.  Pinkham  (Cal.  1910),  112 
Pac.  883;  Galbreath  v.  Hopkins  (Cal. 
1911),  113  Pac.  174. 

Colorado. — Which  rule  is  in  force  in 
Colorado  seems  to  be  left  open  in 
Canon  City  etc.  Co.  v.  Oxtoby  (1909), 
45  oolo.  214,  100  Pac.  1127. 

Idaho. — See  Teeter  v.  Nampa  etc. 
Irr.  Dist.  (Idaho),  114  Pac.  8. 

Kansas. — The  common-law  rule  gov- 
erns. City  of  Paola  v.  Garman 
(1909),  80  Kan.  702,  103  Pac.  83. 
See  Johnston  v.  Hayre  (Kan.),  109 
Pac.  10.75. 

Nebraska. — See  Kane  v.  Bowden, 
85  Neb.  347,  123  N.  W.  94. 

Oklahoma. — The  common-law  and 
not  the  civil-law  rule  is  adopted  in 
Oklahoma.  Chicago  Ry.  v.  Groves,  20 
Okl.  101,  93  Pac.  755,  22  L.  R.  A., 
N.  S.,  802 ;  Davis  v.  Frey,  14  Okl.  340, 
78  Pac.  180,  69  L.  R.  A.  460;  Cole 
v.  Missouri  Co.,  20  Okl.  227,  94  Pac. 
540,  15  L.  R.  A.,  N.  S.,  268;  Town 
of  Jefferson  v.  Hicks  (1909),  23  Okl. 
684,  102  Pac.  79. 

Oregon. — Whether  the  common-law 
or  civil-law  rule  of  surface  waters  pre- 
vails in  Oregon  has  not  been  decided 
up  to  the  decision  in  Price  v.  Oregon 
etc.  Co.,  47  Or.  350,  83  Pac.  843.  See 
Kane  v.  Littlefield,  48  Or.  299,  86 
Pac.  544. 

South  Dakota, — See  Anderson  v. 
Drake  (S.  D.),  123  N.  W.  673. 

Washington. — See  Peters  v.  Lewis, 
33  Wash.  617,  74  Pac.  815. 


Wyoming. — See  Ladd  v.  Redle,  12 
Wyo.  362,  75  Pac.  691. 

Concerning  damage  caused  by 
floods,  see,  also,  a  later  section. 
Infra,  sec.  461  et  seq. 

-3  See  Sheehan  v.  Flynn,  58  Minn. 
436,  61  N.  W.  462,  26  L.  R.  A.  632. 

24  E.  g.,  Neb.  Stats.  1909,  p.  525; 
S.  D.  Stats.  1909,  c.  102. 

25  "In    a    dry    and     arid     climate, 
where  irrigation  is  necessary  in  order 
to  cultivate  the  soil,  the  question  as 
to    the   rights    of    the   proprietors    of 
upper  and  lower   lands  in  regard   to 
the  waste  water    has    seldom    arisen, 
because,  as  a  general  rule,  the  lower 
landowner  is   willing   to   receive,   dis- 
pose of,  and  profit  by  the  use  of  all 
water  flowing  from  the  upper  lands  of 
another   in   irrigating    his   own    land. 
It   is   seldom   that   any  landowner   in 
this   State   has   occasion   to    complain 
of     too     much    water."     Boynton     v. 
Longley,  19  Nev.  69,  3  Am.  St.  Rep. 
781,  6  Pac.  437. 

26  In  the  Report  of  the  Secretary  of 
Agriculture    for    1909    (page    97)    it 
is  said:   "Among  the  most  important 
investigations   in    drainage   are   those 
which    are    conducted    upon   irrigated 
lands.     For  years  it  has  been  known 
that  some  irrigated  fields  easily  become 
swamps,   while   the  productiveness   ol 
others  is  ruined  by  the  accumulation 
of  injurious  alkali.     The  lands  which 
are    most    easily    irrigated    by    water 
from  the  mountain  streams,  and  which 
are  surprisingly  productive  when  first 
reclaimed  from  a  desert  condition,  not 
infrequently  become  noisome  bogs  or 


349 


Ch.  16.     WHAT  CAN  BE  APPROPRIATED.       (3d  ed.)  379 


being  passed  for  organization  of  drainage  districts  upon  the  same, 
lines  as  irrigation  districts.1 

Some  further  consideration  of  this  is  given  elsewhere.2 

(3d  ed.) 

§  349.  Use  of  Surface  Water. — Diffused  surface  water  cannot 
be  appropriated  against  the  landowner  on  whose  land  it  lies.3 
Its  presence  and  movements  are  too  capricious  to  found  any  right 
upon  distinct  from  the  land  where  it  is  gathered,  and  such  water 
is  owned  by  the  owner  of  the  land  where  it  happens  to  lie.4 


alkaline  wastes  after  a  few  years  of 
cultivation  under  copious  irrigation. 
This  is  true  of  a  portion  of  every 
irrigated  valley  in  the  West.  Utah 
contains  not  less  than  150,000  acres  of 
such  land;  Colorado,  75,000;  Califor- 
nia, 100,000;  Nevada,  250,000; 
Wyoming,  50,000;  Montana,  60,000; 
Idaho,  40,000,  all  having  been  once 
cultivated  and  still  having  valuable 
water-rights.  These  are  conservative 
estimates,  showing  the  gravity  of  the 
situation,  and  when  considered  from 
the  point  of  the  owners  -particularly 
emphasize  the  importance  of  using 
preventive  as  well  as  curative  meas- 
ures in  the  treatment  of  saturated 
lands  which  are  under  irrigation. 
....  One  drain  should  be  placed 
along  the  upper  edge  of  the  wet  land 
approximately  across  the  surface  slope 
and  sufficiently  deep  to  intercept  the 
underflow  from  the  higher  land.  Fre- 
quently this  depth  must  be  from  five 
to  seven  feet.  The  drain  may  be  a 
large  open  ditch,  a  covered  lumber-box 
drain,  or  a  large  pipe,  according  as 
may  be  expedient  in  such  locality. 
Where  the  land  lies  in  a  series  of 
benches,  drains  should  parallel  the 
upper  border  of  each  bench.  A  few 
drains  are  usually  required  in  the 
lower  parts  of  the  fields  to  remove 
surplus  water  which  is  supplied  di- 
rectly by  irrigation  or  rainfall.  These 
should  be  located  in  the  depression, 
but  should  not  be  constructed  until 
the  intercepting  drains  have  cut  off 
the  supply  from  outside  sources." 
The  cost,  it  is  said,  will  be  about 
fifteen  to  twenty-five  dollars  per 
acre.  Other  plans  for  drainage  are 
given.  See,  also,  Farmers'  Bulletin, 
373,  U.  S.  Dept.  of  Agriculture. 


It  has  been  said  that  a  difficulty 
has  arisen  under  the  national  irriga- 
tion projects  because  these  sometimes 
did  not  provide  drainage  systems.  See 
45  Cong.  Ree.  2889. 

1  Colorado,  Laws  1909,  e.  161,  pro- 
viding   for    drainage    districts;    Rev. 
Stats.   1909,   sec.  3188   et  seq.;   Laws 
1903,  p.  209   et  seq.     Nevada,  Stats. 
1911,  c.  134.     Oregon,  Stats.  1911,  c. 
241,  p.  424;  Stats.  1911,  c.  172,  p.  256. 
Washington,  Stats.  1911,  c.  97.    Wyom- 
ing, Stats.  1911,  c.  95,  p.  139. 

2  Infra,    sec.    462,    damage    from 
floods,  etc. 

3  Lux  v.  Haggin,   69  Cal.  255,   10 
Pac.   674;    Jacob   v.   Lorenz,   98    Cal. 
332,   at   339,   33   Pac.    119;    Los   An- 
geles Assn.  v.  Los  Angeles,  103  Cal. 
461,    37    Pac.    375;     Sanguinetti    v. 
Pock,  136  Cal.  466,  89  Am.  St.  Rep. 
169,  69  Pae.  98. 

4  Ibid.,    and    compare    the    French 
Law,  as  given  in  "Droit  Civile  Fran- 
cais,"    by    Aubrey    &    Rau,    4th    ed., 
vol.     3,     p.     43 :      "Concerning     rain 
water  falling  on  private  land.     These 
waters  belonged  by  right  of  accession 
and  entirely  independent  of  the  fact 
of   actual   use,   to    the    owner   of   the 
land    on    which    they    fall.     He    may 
dispose     of     them     as     he     pleases, 
whether    by    retaining    them    on    his 
land,  or  by  letting  others  take  them, 
or  by  letting  them  take  their  natural 
course    to   lower   lands."    ("Des    eaux 
pluviales     tombant     sur     un     terrain 
prive.     Ces    eaux    appartiennent    par 
droit    d'accession,    et    independament 
de    tout    fait    d'occupation,    au    pro- 
prietaire    du   terrain   sur   lequel    elles 
tombent.     II   peut   en   disposer  a   son 
gre,    soit    en    les    retenant    dans    son 


380  (3d  ed.)       Pt.  III.     THE  LAW  OF  PRIOR  APPROPRIATION.       §  349 

The  English  cases  have  gone  into  this  quite  thoroughly.  In 
Rawstron  v.  Taylor5  it  was  held  that,  in  the  ease  of  common 
surface  water  flowing  in  no  definite  channel,  the  landowner  was 
entitled  to  get  rid  of  it  in  any  way  he  pleased,  although  he  cut  it 
off  from  plaintiff's  mill  which  it  had  supplied.  In  Broadbent  v. 
Ramsbotham  6  it  was  decided  that  a  landowner  has  a  right  to  im- 
pound surface  water  which  flows  over  his  land  in  no  definite 
channel,  although  the  water  is  thereby  prevente'd  from  reaching 
a  brook,  the  stream  of  which  had  for  more  than  fifty  years 
worked  the  plaintiff's  mill.  Baron  Alderson,  in  delivering  the 
judgment  of  the  court  in  that  case,  says:7  "No  doubt,  all  the 
water  falling  from  heaven,  and  shed  upon  the  surface  of  a  hill, 
at  the  foot  of  whch  a  brook  runs,  must,  by  the  natural  force  of 
gravity,  find  its  way  to  the  bottom,  and  so  into  the  brook;  but 
this  does  not  prevent  the  owner  of  the  land  on  which  this  water 
falls  from  dealing  with  it  as  he  may  please,  and  appropriating 
it.  He  cannot,  it  is  true,  do  so  if  the  water  has  arrived  at  and 
is  flowing  in  some  natural  channel  already  formed.  But  he  has 
a  perfect  right  to  appropriate  it  before  it  arrives  at  such  chan- 
nel." 

All  the  many  cases  already  cited  considering  whether  there 
was  or  was  not  a  watercourse  held  that  if  there  was  not  a  water- 
course, but  only  diffused  surface  water,  neither  the  law  of 
riparian  rights  nor  the  law  of  permanent  rights  by  priority  of 
appropriation  applies.  This  is  because,  as  set  forth  in  the  first 
part  of  this  book,  streams  are  natural  resources  of  permanent  con- 
tinuance due  to  nature,  while  surface  water  is  not  a  permanent 
thing  nor  definite  in  character.  Anyone  receiving  such  water  is 
subject  to  the  paramount  right  of  each  landowner  to  use  his  land 
without  regard  to  its  effect  in  cutting  off  the  water's  passage  to 
others.  The  citations  just  referred  to  cover  this  matter  very 
fully.  We  state  the  following  recent  case  merely  as  an  illustra- 
tion. Surface  and  seepage  water  gathered  upon  a  man's  land  in 
New  Mexico.  It  was  held  his  sole  property,  to  act  upon  as  he 
chose  without  needing  a  permit  from  the  State  Engineer.  He 

fond,  soit  en  les  cedant  a  des  tiers,          Rain  water  «  classed,  like  running 
„     ,       ,   .  ,  ,  water,    in   the    "negative   community" 

soit  enfin  les  laissant  couler  sour  les       in  the'  dvi]  ]aw      ^^  8&Q   5 

fonds  inferieurs  suivant  la  pente  nat-  5  n  Ex.  369,  382. 

urelle    du    terrain.")  8  11  Ex.  602.' 

1  11  Ex.  602,  615. 


§  350  Ch.  16.     WHAT  CAN  BE  APPROPRIATED.       (3d  ed.)  381 

may  consume  it  all,  or  he  may  grant  its  use  to  another,  and  the 
lower  owner  has  no  cause  of  action.8 

True,  as  between  flood-water  claimants  neither  of  whom  owns 
any  land  where  the  flood  waters  gather,  priorities  may  exist.9 
So,  just  as  in  the  case  of  waste  and  seepage  water,  there  are 
statutes  in  many  Western  States  for  priorities  in  the  use  of 
diffused  surface  or  flood  waters  by  priority  of  appropriation  ;  but, 
as  already  considered,  these  apply  only  to  rivals  between  them- 
selves, both  strangers  to  the  landowner  on  whose  land  the  floods 
gather  or  from  which  they"  come.10  They  may  have  application 
between  rival  ditches,  even  though  not  against  a  landowner's 
right  to  interrupt  the  water  for  the  purpose  of  using  it  himself, 
or  for  keeping  his  land  dry,  etc.  Such  statutes  for  appropriation 
of  flood  or  seepage  water  are  usually  found  only  in  such  regions 
as  New  Mexico,  the  Dakotas,  etc.,  where  the  landowner  is  usually 
the  United  States,  remaining  inactive.  Accordingly,  filings  may 
be  there  made  with  the  State  Engineer  for  permits  to  build  dams 
in  dry  ravines,  gulches  or  coulees  on  public  land  to  store  flood 
waters,  and  the  first  permittee  will  have  the  better  right.11 

(3d  ed.) 

§  350.     Swamp  Lands.  —  Title  to  public  lands  of  the  character 

known  as  "swamp  lands"  rests  in  the  State  and  not  in  the  United 
States,  and  they  are  dealt  with  by  special  statutes  and  rules  of 

8  Vanderwork  v.  Hewes  (N.  M.),  v.  Hynes  (Mont.  1910),  108  Pac.  785. 
110  Pae.  567.  The  Territorial  Engineer  of  New  Mex- 

water,   but   it   was   soon   washed   out        floodg          .  different  seasons  of 


,   . 

SSS 

posting   notice,   not   requiring   permit 

10  Supra,  sec.  55.  of  State  Engineer. 

n  See  N.  M.  Laws  1909,  p.  371  ;  A  California  Statute  of  1911,  chap- 

N.  D.  Laws  1909,  c.  152,  p.  179  ;  S.  D.  ter  406,  section  6,  concerns  licensing 

Stats.  1911,  c.  263,  sec.  468;  Sullivan  flood-water  storage  for  power  pur- 

v.  Jones  (Ariz.),  108  Pac.  476;  Kellj  poses. 


382  (3d  ed.)       Pt.  III.     THE  LAW  OF  PRIOR  APPROPRIATION.       §  350 


their  own.12  The  State  of  California  having  been  admitted  into 
the  Union  on  the  ninth  day  of  September,  1850,  on  the  twenty- 
eighth  of  the  same  September  the  Congress  passed  an  act  "to 
enable  the  State  of  Arkansas  and  other  States  to  reclaim  the 
swamp  and  overflowed  lands  within  their  limits,"  known  as  the 
Arkansas  act,  by  which  the  State  of  California  became  the  owner 
of  swamp  lands,  on  the  twenty-eighth  day  of  September,  1850. 

Rules  for  the  disposal  of  swamp  lands  in  California  are  con- 
tained in  the  Political  Code.13     Section  3446  provides  that  when- 


12  The  law  concerning  them  is  dis- 
cussed in  Lux  v.  Haggin,  69  Cal.  255, 
10  Pac.  674;  Heckman  v.  Swett,  99 
Cal.  303,  33  Pac.  1099.  See  State  v. 
Warren  etc.  Co.  (Or.),  106  Pac.  780. 

is  Political  Code,  part  3,  title  8, 
chapter  2.  Concerning  reclamation 
districts,  reference  may  be  made  to 
the  following  cases  (see,  also,  cases 
on  irrigation  districts,  infra,  sec.  1356 
et  seq.)  :  Kimball  v.  Reclamation 
District  Fund  Commrs.,  45  Cal.  344; 
Hagar  v.  Board  of  Supervisors,  47 
Cal.  222;  People  v.  Coghill,  47  Cal. 
361;  Bachman  v.  Meyer,  49  Cal.  220; 
People  v.  Hagar,  49  Cal.  229;  Ferran 
v.  Board  of  Supervisors,  51  Cal.  307; 
Hagar  v.  Board  of  Supervisors,  51 
Cal.  474;  Ralston  v.  Board  of  Super- 
visors, 51  Cal.  592;  People  v.  Hagar, 
52  Cal.  171;  People  v.  Ahern,  52  Cal. 
208;  People  v.  Reclamation  Dist.,  53 
Cal.  346;  People  v.  Houston,  54  Cal. 
536;  People  v.  Williams,  56  Cal.  647; 
Reclamation  Dist.  No.  124  v.  Coghill, 

56  Cal.    607;    Levee    Dist.    No.    1    v. 
Huber,  57  Cal.  41;  People  v.  Haggin, 

57  Cal.   579;    Williams   v.   Board   of 
Supervisors,   58    Cal.    237;    Cosner   v. 
Board   of   Supervisors,    58   Cal.    274; 
Reclamation  Dist.  No.  3  v.  Kennedy, 

58  Cal.  124;  Bixler's  Appeal,  59  Cal. 
550;  Mitchell  v.  Hecker,  59  Cal.  558; 
Bixler    v.    Board    of    Supervisors,    59 
Cal.  698;  Swamp  Land  Dist.  No.  110 
v.    Feck,    60    Cal.    403 ;     Reclamation 
Dist.  No.  3  v.  Goldman,  61  Cal.  205; 
Reclamation  Dist.  No.   108  v.  Evans, 
61    Cal.    104;    Newman    v.    Superior 
Court,  62  Cal.  545 ;  Swamp  Land  Dist. 
No.   121  v.   Haggin,   64  Cal.   204,   30 
Pac.  634;   Williams  v.  Board  of  Su- 
pervisors,   65   Cal.    160,   3    Pac.    667 ; 
Reclamation  Dist.  No.  3  v.  Goldman,. 


65  Cal.  635,  4  Pac.  676;  Reclamation 
Dist.  No.  108  v.  Hagar,  66  Cal.  54, 
4  Pac.  945;  People  v.  Hagar,  66  Cal. 
59,  4  Pac.  951;  Reclamation  Dist.  No. 
3  v.  Parvin,  67  Cal.  501,  8  Pac.  43; 
People  v.  La  Rue,  67  Cal.  526,  8  Pac. 
84;  Swamp  Land  Dist.  No.  307  v. 
Gwynn,  70  Cal.  566,  12  Pac.  462; 
People  v.  Hulbert,  71  Cal.  72,  12  Pac. 
43;  Standford  v.  Felt,  71  Cal.  249,  6 
Pac.  900;  Lamb  v.  Reclamation  Dist. 
No.  108,  73  Cal.  125,  2  Am.  St.  Rep. 
775,  14  Pac.  625;  People  ex  rel.  At- 
torney General  v.  Parvin,  74  Cal.  549, 
16  Pac.  490;  Swamp  Land  Dist.  No. 
407  v.  Wilcox,  75  Cal.  443,  17  Pac. 
241;  Hutson  v.  Woodbridge  Protec- 
tion Dist.  No.  1,  79  Cal.  90,  61  Pac. 
549,  21  Pac.  435;  Lord  v.  Dunster, 
79  Cal.  477,  21  Pac.  865;  People  v. 
Gunn,  85  Cal.  238,  24  Pac.  718;  Rec- 
lamation Dist.  No.  124  v.  Gray,  95 
Cal.  601,  30  Pac.  779;  Swamp  Land 
Dist.  No.  150  v.  Silver,  98  Cal.  51, 
32  Pac.  866;  Marshall  v.  Taylor,  98 
Cal.  55,  35  Am.  St.  Rep.  144,  32 
Pac.  867;  Gwynn  v.  Diersen,  101 
Cal.  563,  36  Pac.  103;  Reclamation 
Dist.  No.  542  v.  Turner,  104  Cal. 
334,  37  Pac.  1038;  Lower  Kings 
River  Reclamation  Dist.  No.  531  v. 
Phillips,  108  Cal.  306,  39  Pac.  630, 
41  Pac.  335;  Swamp  Land  Dist.  No. 
307  v.  Glide,  112  Cal.  85,  44  Pac. 
451;  Barnes  v.  Glide,  117  Cal.  1,  59 
Am.  St.  Rep.  153,  48  Pac.  804;  Peo- 
ple ex  rel.  Sels  v.  Reclamation  Dist. 
No.  551,  117  Cal.  114,  48  Pac.  1016; 
Reclamation  Dist.  No.  551  v.  Runyon, 
117  Cal.  164,  49  Pac.  131;  Tulare 
County  v.  May,  118  Cal.  303,  50 
Pac.  427;  People  v.  Reclamation  Dist 
No.  36,  121  Cal.  522,  50  Pac.  1068, 
53  Pac.  1085 ;  Hensley  v.  Reclamation 
Dist.,  121  Cal.  96,  53  Pac.  401;  Wein- 


§350 


Ch.  16.     WHAT  CAN  BE  APPROPRIATED.       (3d  ed.)  383 


ever  the  owners  of  more  than  one-half  of  any  body  of  swamp 
land  and  overflowed  lands  desire  to  reclaim  the  same,  they  may 
present  to  the  board  of  supervisors  a  petition  for  the  formation 
of  a  reclamation  district.14  It  is  held  that  this  vests  in  the  super- 
visors absolutely  the  determination  whether  the  lands  are  un- 
reclaimed and  whether  they  are  subject  to  independent  reclama- 
tion; and  being  so  vested,  the  determination  is  legislative  in  its 
nature,  and  the  courts  are  powerless  to  interfere,  or  to  restrain 
the  exercise  of  the  power  by  the  board  of  supervisors.  This 
holding  has  since  been  modified.15 

The  power  of  the  State  to  legislate  for  the  reclamation  of 
swamp  lands  is  not  confined  to  those  lands  the  title  to  which  was 
acquired  under  the  Arkansas  act,  but  exists  as  to  all  swamp  and 
overflowed  lands  in  the  State,  and  the  burden  of  the  charges 


reich  v.  Hensley,  121  Cal.  647,  54 
Pac.  254;  Reclamation  Dist.  No.  537 
v.  Burger,  122  Cal.  442,  55  Pac.  156; 
Clare  v.  Sacramento  Electric  etc.  Co., 
122  Cal.  504,  55  Pac.  326;  People  ex 
rel.  Cluff  v.  City  of  Oakland,  123  Cal. 
598,  56  Pac.  445;  Lower  Kings  River 
Reclamation  Dist.  No.  531  v.  McCul- 
lah,  124  Cal.  175,  56  Pac.  887;  Cali- 
fornia Pastoral  Co.  v.  Whitson,  129 
Cal.  376,  62  Pac.  28;  Reclamation 
Dist.  No.  108  v.  West,  129  Cal.  622, 

62  Pac.  272;  In  re  Werner,  129  Cal. 
567,  62  Pac.  97 ;  People  ex  rel.  Thisby 
v.    Reclamation    Dist.,    130    Cal.    607, 

63  Pac.   27;    People   ex  rel.   Silva  v. 
Levee    Dist.,    131    Cal.    30,    63    Pac. 
676;     Adams    v.     City    of    Modesto, 
131  Cal.  501,  63  Pac.  1083;  Reclama- 
tion Dist.   No.  563  v.   Hall,   131   Cal. 
662,    63    Pac.    1000;    National    Bank 
v.   Greenlaw,    134    Cal.    673,    66    Pac. 
963;     McCord    v.    Slavin,    143    Cal. 
325,    76    Pac.    1104;     San    Francisco 
Savings   Union   v.    Reclamation   Dist. 
No.  124,  144  Cal.  639,  79  Pae.  374; 
Reclamation    Dist.    No.    551    v.    Van 
Loben    Sels,    145    Cal.    181,    78    Pac. 
638;  Glide  v.  Superior  Court,  147  Cal. 
21,  81   Pac.   225    (modified  in  Inglin 
v.    Hoppin,    156    Cal.    483,    105    Pac. 
582) ;    Reclamation    District    No.    70 
v.    Sherman,    11    Cal.    App.    399,    105 
Pac.  277;    Swamp  Land  Reclamation 
Dist.  No.  341  v.  Blumenberg,  156  Cal. 
532,  106  Pac.  389;   Keech  v.  Joplin, 
157  Cal.   1,   106  Pae.   222;    Metcalfe 


v.  Merritt,  14  Cal.  App.  244,  111  Pac. 
505,  and  other  cases. 

See,  also,  Billings  etc.  Co.  v.  Fish, 
40  Mont.  256,  106  Pac.  571;  State  v. 
Warren  etc.  Co.  (Or.),  106  Pac.  780; 
State  v.  Superior  Court,  42  Wash. 
491,  85  Pac.  264. 

14  Prior   to   the   enactment   of   the 
Political  Code,  similar  legislation  ex- 
isted in  the  statutes,  and  section  3478 
of   the  Political  Code  allowed   recla- 
mation   districts    formed    under    laws 
prior   to   March    27,    1868,   to    be   re- 
organized.    See    San    Francisco    Sav- 
ings  Union   v.   Reclamation    District, 
144  Cal.   639,   79  Pae.  374. 

15  Glide  v.  Superior  Court,  147  Cal. 
21,  81  Pae.  225.     See  Inglin  v.  Hop- 
pin,   156   Cal.   483,   105   Pac.   582. 

As  to  validity  of  organization,  see 
Keech  v.  Joplin,  157  Cal.  1,  106  Pac. 
222.  Organization  of  district — col- 
lateral attack — description  of  territory 
affected,  Metcalfe  v.  Merritt  (Cal. 
App.),  Ill  Pac.  505.  Establishment  of 
district — notice — description  of  bound- 
aries— constitutionality  of  law — double 
taxation — collateral  attack,  Barnes  v. 
Colusa  County  Supervisors  (Cal.  App.), 
110  Pac.  820.  Fiscal  affairs,  Keech  v. 
Joplin,  157  Cal.  1,  106  Pac.  222.  As- 
sessment of  costs  of  improvements, 
Reclamation  Dist.  No.  535  v.  Clark, 
155  Cal.  345,  100  Pac.  1091.  Judicial 
review  officer's  acts,  Lamb  v.  McMul- 
len,  157  Cal.  14,  106  Pac.  229;  Inglin 
v.  Hoppin,  156  Cal.  483,  105  Pac.  582. 


384  (3d  ed.)       Pt.  III.     THE  LAW  OF  PRIOR  APPROPRIATION.       §  350 

for  the  work  may  be  placed  on  specific  lands  in  proportion  to 
the  estimated  benefits  thereto,  and  the  members  of  the  assessing 
board  (the  board  of  drainage  commissioners)  are  not  disqualified 
because  they  themselves .  own  lands  within  the  district  assessed.18 
In  this  case  an  act  creating  a  large  district  in  the  Sacramento 
Valley  was  upheld,  and  Mr.  Justice  Henshaw  reviews  the  history 
of  such  legislation  in  California.  The  act  was  repealed  in  1911. 16a 

It  has  been  said  that  there  are  very  grave  doubts  whether, 
upon  a  fair  interpretation  of  the  State  statutes  providing  for 
reclamation,  the  barring  of  the  flow  of  a  regular  and  defined 
stream  from  the  lands  below,  not  swamp,  is  contemplated,  or 
whether  the  State  would  have  power,  by  any  statute,  to  authorize 
such  a  proceeding.  The  statute  seems  to  have  in  view  levees 
along  the  sides  of  watercourses,  and  not  across  them.17 

Reclaimed  swamp  lands  come  within  the  same  law  as  to  irriga- 
tion and  riparian  rights  as  other  agricultural  lands.  In  one  case 
it  was  urged  that  swamp  lands  are  per  se  lands  upon  which 
water  cannot  be  beneficially  used  for  irrigation,  but  the  court 
held  that  the  legal  effect  of  such  use  depends  on  the  facts  pre- 
sented in  each  case, .saying:  "Merely  because  the  land  may  have 
been  reclaimed  as  swamp  land  does  not  necessarily  deprive  it  of 
the  need  of  irrigation.  The  circumstance  that  it  has  been  re- 
claimed may  raise  a  presumption  that  at  a  particular  time  it 
required  no  water  for  irrigation;  and  testimony  to  that  effect 
may  be  admitted  in  evidence  for  the  purpose  of  ascertaining  the 
quantity  of  water  essential  to  its  productiveness.  But  when  it 
appears  that  the  land  has  in  fact  been  reclaimed  sufficiently  to 
entitle  its  possessor  to  a  deed  from  the  State,  if  in  an  arid  sec- 
tion, it  implies  that  the  land  has  been  deprived  of  its  excessive 
moisture,  and  thereby  restored  to  the  same  condition  as  other 
agricultural  lands  in  the  vicinity,  and  subject  to  the  same  rights 
in  respect  to  the  stream  flowing  through  it,  or  in  an  appropriation 
from  any  source  of  water  supply  for  its  irrigation."18 

18  People  ex  rel.  Chapman  v.  Sac-  See,  also,  concerning  swamp  lands, 

ramento  Drainage  District  (1909),  Morrow  v.  Warner  etc.  Co.  (Or.),  101 

155  Cal.  373,  103  Pac.  207.'  Pac.  171;  Dixon  v.  Same  (Or.),  101 

I6a  Stats.  1911,  c.  8.  Pac.  189;   Harrington  v.  Same   (Or.), 

17  Lux  v.  Haggin,  69  Cal.  255,  10  101  Pac.  189;  Forkett  v.  bame  (Or.), 
Pac    674.  101  Pac.  190;  Dryden  v.  Pelton-Arm- 

18  Hough  v.  Porter,  51  Or.  318,  95  strong  Co.,  53  Or.  418,  101  Pae.  190. 
Pac.  732,  98  Pac.  1083,  102  Pac.  728. 


S  351  Ch.  16.     WHAT  CAN  BE  APPROPRIATED.       (3d  ed.)  385 

(3d  ed.) 

§  351.  Underground  Water. — How  far  the  law  of  appropria- 
tion applies  to  underground  water  is  considered  elsewhere.  It 
is  thought  best  to  consider  all  aspects  of  the  law  of  underground 

water  together  in  a  single  place.19 
t 

19  Infra,  sees.  1039  et  seq.,  1106  ^   1158. 
§§  352-360.     (Blank  numbers.) 

Water  Bights — 25 


386  (3dea.)       Pt.  IH.     THE  LAW  OF  PKIOE  APPROPRIATION. 


CHAPTER  17. 

HOW  AN   APPROPRIATION   IS   MADE..  THE    ORIGINAL 

METHOD. 

§  361.     The  original  method. 
§  362.     Possessory  origin  of  this  method. 

§  363.     Ownership  of  land  unnecessary,  and  water  need  not  be  returned  to 
the  stream. 

A.     BY  ACTUAL  DIVERSION. 

§  364.     Distinguished  from  the  statutory  method. 

§  365.     The  statutes  do  not  apply. 

§  366.     Settlement  on  stream  banks  not  alone  enough — No  preference  to 

riparian  owners. 
§  367.    Same. 

B.     TO  SECURE  THE  BENEFIT  OF  RELATION. 
§  368.     Object  of  statutory  provisions. 
§  369.     Provisions  chiefly  declaratory  only. 
§  370.     Essential   requisites. 

C.     NOTICE. 
§  371.     Form  of  notice. 
§  372.     Contents  and  recording  of  notice. 
§  373.     Purpose  of  the  notice. 
§  374.     The  notice  operates  as  a  warning. 
§  375.     Failure  to  post  notice. 
§  376.    Notice  alone  not  enough. 

D.     BENEFICIAL  PURPOSE. 
§  377.     Necessity  for  Ttona  fide  intention. 
§  378.     What  constitutes  a  beneficial  purpose. 
§  379.     Motive. 
§  380.     Evidence  of  intention. 
§  381.     Intention  alone  not  enough. 

E.     DILIGENCE. 
§  382.     Necessity  for  diligence. 
§  383.     What  constitutes  diligence. 
§  384.     Delay  during  legal  proceedings. 
§  385.     Failure  to  use  diligence. 

F.     COMPLETION  OF  CONSTRUCTION  WORK. 
§  356.     Completion  of  work  preparatory  to  use  of  water. 
§  387.     What  constitutes  completion. 


§361  Ch.  17.     HOW  APPKOPRIATION   IS   MADE.      (3d  ed.)  387 

§  388.  Means  of  diversion. 

§  389.  Diversion  alone. 

§  390.  Use  of  existing  ditches. 

§  391.  Same. 

§  392.  Changes  in  the  course  of  construction. 

G.     EELATING  BACK. 

§  393.     Origin  of  the  doctrine. 
§  394.     Effect  of  relation. 

H.     ACTUAL  APPLICATION. 
§  395.     Necessity   for   actual    application    and   use  under  the   possessory 

origin  of  the  law. 

§  396.     Same — Under  the  view  now  developing. 
§  397.     Federal  requirements. 
§  398.     Recapitulation. 
§§  399-407.     (Blank  numbers.) 

(3d  ed.) 

§  361.  The  Original  Method.— Using  the  California  Civil 
Code1  as.  a  model  for  legislation,  and,  consequently  (as  the  Cali- 
fornia code  is  chiefly  only  declaratory  of  the  early  decisions), 
basing  their  method  upon  the  early  California  decisions,  the  fol- 
lowing method  was  up  to  recent  years  followed  throughout  the 
West  by  statute,  or  in  the  absence  of  statute,  by  decision  of 
the  courts.2  But  in  recent  years,  especially  since  the  legislative 
sessions  of  1903,  most  of  the  States  have  adopted  the  "water 

1  Sees.   1410-1422.  Montana. — See  next  note. 

2  Arizona.— Rev.     Stats.     1901,     p.          Nevada.— Comp.   Laws,    1900,   sees. 
1042,  sec.  4169.  £56  et  seq.,  424. 

Colorado. — Sieber  v.  Frink,  7  Colo.  AT  ,,&,,.„  „?,,,      r^  Q+  ,        icai 

i  to    o  T»        r>ni     -o  >     .      n  Nebraska. — L/omp.    btats.    1891.    e. 

148,  2  Pac.  901;  Farmers'  etc.  Co.  v.       qq  844 

Southworth,    13    Colo.    Ill,    21    Pae.  oa'  p-  °**' 

1028    4  L.  R.  A.  767.  Oregon. — Hills'  Ann.  Laws,  p.  1930, 

Idaho.— 2   Idaho   Codes,  sec.   2583;  secs-  l~Q-   A  more  enlarged  treatment, 

McLean's    Rev.    Codes,    sec.    3242    et  sti11  based  on  the  California  method, 

seq.;  Laws  1901,  p.  191:   Sand  Point  was   provided   later.     Stats.    1899,    p. 

etc.    Co.    v.    Panhandle    etc.    Co.,    11  172>    Am-    1901,    P-    136,    1903     (Sp. 

Idaho,  405,  83  Pac.  347.     In  Speer  v.  Sess.),    p.    25.     But    the    statute    of 

Stephenson,   16   Idaho,   707,   102  Pac.  1905  (Stats.  1905,  p.  401)    was  based 

365,  the  original  Idaho  law  was  said  rather    upon    the    new    statutory    or 

to    be:    "An    appropriation    was    ini-  "water  code"  method  described  in  the 

tiated  by  posting  a  notice  at  or  near  next      chapter.     In      1909      the      full 

the  point  of  intended  diversion,  stat-  water    code    procedure    was    adopted, 

ing    certain    facts;    and    an    inchoate  as  in  the  next  chapter, 

nght  thereby  arose  which  would  ripen  Texas. — Act  of  March  19,  1889. 

into  a  legal  and  complete  appropria-  Utah. — Rev.  Stats.  1898,  secs.  1261- 

tion   upon    the   final    delivery   of    the  1275. 

waters  to  the  place  of  intended  use."  Washington. — See  next  note. 

Kansas. — See  next  note.  Wyoming.— Laws  1869,  p.  310. 


388  (3d  ed.)       Pt.  HI.     THE  LAW  OF  PEIOE  APPEOPEIATION.       §  362 

code"  system  described  in  the  next  chapter,  which  originated  in 
Wyoming,  as  a  kind  of  systematization  of  the  California  prin- 
ciples, and  the  older  statutes  and  decisions  are  thus,  so  far  as  the 
water  code  method  differs  from  that  in  this  chapter,  superseded; 
though  that  method  is  founded  at  the  bottom  on-  the  ideas  of  the 
method  described  in  this  chapter.  At  the  present  day,  the 
method  here  set  forth  remains  substantially  in  California,  Kansas, 
Montana  and  Washington.3  (An  exception  was  made  in  1911,  in 
California,  providing  a  new  system  for  power  uses  only,  as  set 
forth  in  the  next  chapter.) 

Under  the  California  doctrine  these  rules  apply  only  to  waters 
upon  public  domain  (to  which  the  doctrine  of  appropriation  is 
in  California  restricted);3®  under  the  Colorado  doctrine,  to  all 
waters  wherever  situated.  All  rights  acquired  upon  public  land 
under  these  rules  are  protected,  so  far  as  the  United  States  is  con- 
cerned, by  the  act  of  1866,  sections  2339,  2340,  of  the  Revised 
Statutes  of  the  United  States. 

In  the  following,  decisions  from  all  jurisdictions  are  given, 
since,  until  recently  changed  by  statute,  the  rules  were  the  same 
in  all,  following  the  California  decisions.  The  method  described 
in  this  chapter  might  be  called  the  original  method;  and  that,  in 
the  next  chapter,  the  new  method. 

(3d  ed.) 

§  362.    Possessory   Origin   of   This   Method.— Having   found 

water  that  can  be  appropriated  and  a  proper  place  to  appropriate 
it  (in  California  it  must  be  on  or  flowing  by  public  land), 
the  right  to  the  water  is  not  complete  until  the  water  is  actually 
taken  into  one's  possession,  or  rather,  until  all  work  preparatory 
to  the  actual  use  of  the  water  is  completed,  since  that  is  the 
equivalent  of  taking  possession;  it  is  the  nearest  to  possession 

3  California.— Civ.  Code,  sees.  1410-  mining    and   manufacture.     See   sees. 

1429  1540,   1541. 

Kansas.— Gen.    Stats.     1901,     sees.  The  statutes  of  Texas   are  a  com- 

3609-3613;     Gen.     Stats.     1905,    sec.  promise    between    the    two    methods. 

3791    et   seq.;    Gen.   Laws    1909,    sec.  ln  Alaska,  there  being  no  statutes 

4405  hereon,  the  district  rules  usually  fol- 

Montana.— Stats.  1907,  p.  489;  low  the  California  Civil  Code  See, 
Civ.  Code  1895,  sees.  1880-1892;  Am.  for  example,  those  quoted  m  Thorn- 
Stats  1901  p  152  dyke  v.  Alaska  Perseverance  Co.  (Oct. 

Washington.'—  Ballinger's        Codes  5>  1908),  164  Fed.  657. 

1897,  sec.   4092;   Pierce's  Code   1905,  3a  Supra,  sees.  Ill  et  seq.,  151  et 

sec.  5132  et  seq.     Appropriations  for  seq.,  227  et  seq. 


§363  Ch.  17.     HOW  APPROPRIATION   IS   MADE.      (3d  ed.)   389 

that  the  nature  of  the  right  makes  possible.4  The  appropriator 
acquires  no  right  until  he  actually  takes  possession.5 

The  rules  developed  in  the  early  days  upon  the  public  lands 
in  California,  and  (upon  the  public  land)  still  prevail  in  Cali- 
fornia (so  far  as  State  law  prevails)  substantially  as  laid  down 
in  the  early  decisions  of  the  court.  The  proposition  around 
which  these  rules  center  is,  it  should  be  repeated,  that  the  requi-, 
sites  are  those  furnishing  an  equivalent  to  taking  possession  of 
the  flow  of  the  water,  the  right  having  arisen  as  a  possessory 
right  on  the  public  domain.  It  is  an  illustration  of  the  possessory 
origin  of  the  law  of  appropriation.8 

(3d  ed.) 

§  363.    Ownership  of  Land  Unnecessary  and  Water  Need  not 

be  Returned  to  the  Stream. — It  has  previously  been  pointed  out 
that  there  are  no  personal  requisites  concerning  the  appropriator. 
It  is  immaterial  whether  he  is  an  alien,  minor,  riparian  pro- 
prietor, etc.7  It  will  be  well  to  repeat  here  that  ownership  of 
any  land  is  not  a  requisite  either;  the  appropriator  need  not 
locate  any  land.8  That  is  a  distinguishing  feature  of  the  law  of 
appropriation.  Water  may  be  appropriated  for  use  any  place  9 
by  anyone,  and  often  is  diverted  by  companies  who  own  no  land, 
to  supply  distant  people.  The  supreme  court  of  the  State  of 
Washington  says  that  "the  right  of  appropriation,  as  defined  by 
the  best  authorities,  is  not  controlled  by  the  location  of  the 
stream  with  reference  to  the  premises  which  are  irrigated."10 
The  Colorado  court  says  in  the  case  last  cited:  "The  appro- 
priator, though  he  may  not  own  the  land  on  either  bank  of  a 
running  stream,  may  divert  the  water  therefrom,  and  carry  -the 

4  Conger  v.  Weaver,  6  Gal.  548,  65       doctrine,  further  rights  as  a  riparian 
Am.  Dec.  528,  1  Morr.  Min.  Rep.  594       proprietor. 

(quoted   infra,   sec.   393);    Thompson  9  In  New  Mexico  by  statute  an  ap- 

v.  Lee,  8  Cal.  275,  1  Morr.  Min.  Rep.  propriation  cannot  be  made  for  use 

610.  beyond    the    watershed.     Infra,    sec. 

5  Bybee    v.    Oregon    etc.    Co.,    139  144°- 

U.  S.  663,   11   Sup    Ct.  Rep.   641,  35           10  Offield  v.  Ish,  21  Wash.  277,  57 

L.   Ed    305  Pac.    809.     See,    also,    Long    on    Irri- 

-.OQ  gation,    50;     Thomas    v.    Guiraud,    6 

See  supra,  sec.  139.  golo    '530.'   Hammond    v     Bose,    11 

7  Supra,  sec.  318  et  seq.        .»  Colo.    524,    7    Am.    St.   Rep.    258,    19 

8  Supra,    sec.    281.     Except    as   re-  Pac.  466;  Oppenlander  v.  Left  Hand 
cent  water  codes  change  the  rule,  sec.  Ditch  Co.,  18  Colo.  142,  31  Pac.  854. 
282,  supra,  and  sec.  509,  infra.     And  And   see   supra,   sec.   319,   appropria- 
it  must  also  be  noted  that  if  the  ap-  tion  by  trespasser. 

propriator   does   have   land   along  the  But  see  Avery  v.  Johnson  (Wash.), 

stream,  he  has,  under  the  California       109  Pac.  1028. 


390   (3d  ed.)       Pt.  III.     THE  LAW  OF  PRIOB  APPROPRIATION.       §  364 

same  whithersoever  necessity  may  require  for  beneficial  use, 
without  returning  it,  or  any  of  it,  to  the  natural  stream,  in  any 
manner."  The  supreme  court  of  Utah  says:  "In  order  that  the 
appropriator  may  be  entitled  to  the  use  of  such  water,  it  is  not 
essential  that  he  should  have  located  or  taken  possession  of  any 
tract  or  parcel  of  the  public  domain  bordering  upon  the  stream 
or  lake  from  which  the  appropriation  is  made,  or  that  he  even 
have  an  interest  in  or  to  the  lands  proposed  to  be  irrigated,  if 
such  be  the  beneficial  purpose  of  the  appropriation.  An  appro- 
priation may  be  made  of  such  water  for  the  irrigation  of  lands 
not  situated  upon  or  near  the  stream  or  lake  from  which  it  is 
taken,  and  the  water  may  be  conducted  by  means  of  ditches  or 
channels,  or  otherwise,  across  the  intervening  public  lands,  to 
irrigate  lands  possessed  by  the  appropriator  or  others,  or  he  may 
sell  and  dispose  of  the  water  thus  conducted  to  others  to  use  it 
for  a  beneficial  purpose  on  claims  or  lands  possessed  or  owned  by 
them,  or  in  which  they  have  an  interest,  and  upon  which  the 
wafer  may  be  and  is  applied  for  a  beneficial  purpose."  n 

As  elsewhere  considered,  the  transition  from  a  * '  possessory "  to  a 
"specific  use"  system  now  going  on  in  the  law  of  appropriation 
tends  to  modify  this  characteristic,  and,  by  making  the  appropria- 
tion inhere  in  the  specific  use  first  made  of  it,  tends  to  require 
that  an  irrigator  own  land  of  his  own  before  he  can  appropriate 
water  for  irrigation.  But  that  is  as  yet  only  a  tendency  in  the 
law;  as  already  pointed  out  the  original  view  still  strongly  pre- 
vails in  making  the  right  independent  of  the  place  or  purpose  of 
use.12 

A.     BY  ACTUAL  DIVERSION. 

(3d  ed.) 

§  364.  Distinguished  from  the  Statutory  Method. — An  appro- 
priation may  be  made  by  a  completed  actual  diversion  for  a 
beneficial  purpose  (without  following  the  statute)  or  else  by  pro- 
ceeding under  the  statute.  The  difference  is  that  in  the  latter 
case  the  appropriator  can  claim  the  benefit  of  the  doctrine  of 
relation,  while  in  the  former  he  cannot.  The  difference,  however, 
existed  from  the  earliest  times,  and  the  statute  merely  fixed 
the  details  of  the  method  by  which  an  appropriator  could  secure 
the  benefit  of  the  doctrine  of  relation.33 

11  So  wards  v.  Meagher  (Utah),  108  13  De   Necochea' v.   Curtis,   80   Cal. 
Pac.  1113.                                                          397,  20  Pac.  563,  22  Pac.  198;  Wells 

12  Supra,  sees.  139,  281.  T.  Mantes,  99  Cal.  583,  34  Pac.  324. 


§365  Ch.  17.     HOW  APPROPRIATION   IS  MADE.      (3d  ed.)  391 

These  two  are  the  only  methods.  Unless  there  is  a  right  by 
actual  diversion  as  below  set  forth,  or  by  compliance  with  the 
statute,  it  cannot  be  spoken  of  as  an  appropriation.14  There  can 
be  no  such  thing  as  a  constructive  appropriation,  resting  as  the 
matter  does  so  largely  upon  actual  intent.15  There  can  be  no  ap- 
propriation by  prescription,  as  an  appropriation  is  an  original 
acquisition  from  the  government  (in.  California,  the  United 
States,  the  doctrine  of  appropriation  being  there  confined  to  the 
public  lands;  under  the  Colorado  doctrine,  from  the  State), 
against  whom  the  statute  of  limitations  does  not  run.18  This 
rule  precludes  an  appropriation  improperly  made,  but  continued 
for  five  years,  from  being  of  any  force,  the  land  having  been 
public  land  part  of  that  time.17 

(3d  erf.) 

§  365.    The  Statutes  Do  not  Apply. — Where  one  does  not  seek 

the  benefit  of  the  doctrine  of  relation,18  and  actually  completes 
his  construction  work,  and  diverts  the  water  for  a  beneficial  pur- 
pose before  others  intervene,  his  claim  as  an  appropriator  is 
valid,  and  always  has  been.  An  appropriation  is  merely  the 
acquisition  of  a  right  from  the  government  (in  California,  on  pub- 
lic land)  initiated  by  taking  possession  of  the  stream  for  a 
beneficial  purpose.  If  there  are  rival  claimants,  the  government 
demands  compliance  with  the  statutory  formalities,  which 
formalities  originally  rested  upon  custom,  and  now  upon  State 
legislation;  but  if  there  are  no  rival  claimants,  the  government 
is  alone  concerned,  and  acquiesces  (the  act  of  1866),  because 
such  was  the  rule  under  the  early  customs.  Possession  is  a  good 
title  against  a  later  possessory  claimant.19  As  between  the  gov- 
ernment and  the  appropriator  there  are  only  two  requisites  for 
this — the  actual  diversion  of  the  water  and  that  the  diversion  is 
for  a  beneficial  purpose.  If  there  are  no  rival  claimants  of  any 
kind  up  to  such  completion  of  work,  and  actual  possession,  that 
is  enough  to  satisfy  the  government,  who  is  then  alone  concerned, 

14  Senior    v.     Anderson,    115    Gal.  42    Pac.    453;    State   v.    Quantic,    37 
496,  at  505,  47  Pac.  454.  Mont.    32,   94   Pac.   491;    Jackson   v. 

15  Kelly  v.  Natoma  etc.  Co.,  6  Cal.  Indian   etc.   Co.,   18   Idaho,   251,   110 
105,  1  Morr.  Min.  Rep.  592.  Pac.  251. 

16  Matthews    v.    Ferrera,    45    Cal.  17  Ibid.     See  infra,  sec.  591. 
51;   Wilkins  v.  McCue,   46   Cal.   656;  18  Infra,  sec.  393. 

Jatunn  v.  Smith,  95  Cal.  154,  30  Pac.  19  Evans  Ditch  Co.  v.  Lakeside  D. 

200;  Smith  v.  Hawkins,  110  Cal.  122,       Co.,  13  Cal.  App.  119,  108  Pac.  1027. 


392  (3d  ed.)       Pt.  III.     THE  LAW  OF  PRIOR  APPROPRIATION.       §  365 


and  the  right  is  complete  against  later  attack  on  the  ground  of 
failure  to  comply  with  the  statutes.20  The  leading  case  is  Wells 
v.  Mantes.21  In  another  case  it  was  held  that  where  there  has 
been  an  actual  application  and  use  of  water,  the  right  of  the 
appropriator  is  not  impaired  by  the  fact  that  there  has  been  no 
compliance  with  the  provisions  of  the  Civil  Code  for  the  acquisi- 
tion of  water-rights.22  And  in  a  more  recent  case  ^  Mr.  Justice 
Shaw  said:  "In  order  to  make  a  valid  appropriation,  it  was  not 
necessary  for  Duncan  to  post  and  record  a  notice  of  appropriation 
as  provided  in  the  Civil  Code.24  The  method  of  acquiring  a  right 
to  the  use  of  water  as  there  prescribed  is  not  exclusive.  One 
may,  by  a  prior,  actual,  and  completed  appropriation  and  use, 
without  proceeding  under  the  code,  acquire  a  right  to  the  water 
beneficially  u"sed,  which  will  be  superior  and  paramount  to  the 


20  Mitchell   v.    Canal   Co.,    75    Cal. 
464,  17  Pac.  246;  Wells  v.  Mantes,  99 
Cal.  583,  34  Pac.  324 ;   De  Neeochea  ' 
v.   Curtis,   80   Cal.   397,   20   Pac.   563, 
22  Pac.  198;  Burrows  v.  Burrows,  82 
Cal.  564,  23  Pac.   146;   Watterson  v. 
Saldunbehere,   101   Cal.   107,  35   Pac. 
432;   Taylor  v.  Abbott,  103  Cal.  421, 
37  Pac.  408;  Senior  v.  Anderson,  115 
Cal.  496,  47  Pac.  454;   Duckworth  v. 
Watsonville    Co.,    158    Cal.    206,    110 
Pac.  927. 

21  The  headnote  to  Wells  v.  Mantes, 
supra,  sums  up  the  decision   as   fol- 
lows:  "The  scope  and  purpose  of  the 
provisions    of    the    Civil    Code    upon 
water-rights  were  merely  to  establish 
a  procedure  for  the  claimants  of  the 
right  to  the  use  of  the  water  whereby 
a  certain   definite  time  might   be   es- 
tablished as  the   date  at  which  their 
title   should   accrue   by   relation;   and 
a   failure    to   comply   with   the   rules 
there  laid  doA  n  does  not  deprive  an 
appropriator   by   actual    diversion    of 
the  right  to  the  use  of  the  water  as 
against    a    subsequent    claimant    who 
complies     therewith."      The     decision 
was   that    section    1419   of   the    Civil 
Code  providing  for  forfeiture  for  non- 
compliance  with  the  code  formalities 
does  not   apply   to   such  a  case,   the 
court    saying:     "To     defeat    the    re- 
spondent's   rights,    appellants    invoke 
section  1419  of  the  Civil  Code,  which 
reads:  'A  failure  to  comply  with  such 
rules    deprives    the    claimants    of   the 
right    to    the    use    of    the    water    as 
against    a    subsequent    claimant    who 


complies  therewith.'  We  think  this 
provision  does  not  refer  to  an  appro- 
priator by  actual  diversion,  but  only 
to  claimants  seeking  the  right  to  the 
use  of  water  under  the  provisions  of 
this  chapter  of  the  code.  This  is 
made  apparent  by  an  examination  of 
the  preceding  sections.  Section  1415 
provides:  'A  person  desiring  to  ap- 
propriate water  must  post  a  notice,  in 
writing,  in  a  conspicuous  place  at  the 
point  of  intended  diversion,  stating 
therein  that  he  claims  the  water 
there  flowing  to  the  extent,'  etc.  Sec- 
tion 1416  reads:  'Within  sixty  days 
after  the  notice  is  posted  the  claim- 
ant must  commence  the  excavation  or 
construction  of  the  work,  etc.'  Sec- 
tion 1418  reads:  'By  a  compliance 
with  the  above  rules  the  claimant's 
right  to  the  use  of  the  water  relates 
back  to  the  time  the  notice  was 
posted.'  It  thus  becomes  apparent 
from  these  provisions  that  the  word 
'claimants'  as  used  in  section  1419  re- 
fers to  a  party  posting  and  recording 
the  notices  required  by  the  provisions 
of  section  1415,  and  does  not  apply  to 
an  appropriator  by  actual  diversion." 

22  Watterson   v.   Saldunbehere,   101 
Cal.  107,  35  Pac.  432. 

23  Lower  Tule   etc.   Co.  v.  Angiola 
etc.  Co.,  149  Cal.  496,  86  Pac.  1081. 
In    this    case    the    appropriation    was 
made   by   cutting   a   hole    in    a   river 
levee   and   letting   the   water   run   by 
the  side  of  the  levee  down  to  his  land. 

24  Sees.  1415-1421. 


§365  Ch.  17.     HOW  APPROPRIATION   IS   MADE.      (3ded.)  393 

title  of  one  making  a  subsequent  appropriation  from  the  same 
stream  in  the  manner  provided  by  that  statute."25 

One  who  had  long  been  using  the  water  on  public  land  as  ap- 
propriator  was  protected  in  De  Necochea  v.  Curtis l  against  a 
later  homesteader  claiming  as  a  riparian  owner,  though  the  appro- 
priator'had  not  complied  with  the  formalities  required  by  the 
code.2  In  Wells  v.  Mantes3  he  was  likewise  protected  against 
a  later  appropriator  who  did  comply  with  the  code.  In  Utt  v. 
Frey  4  the  appropriator  died,  and  his  son  in  law  entered  and  took 
possession  without  any  formal  transfer.  The  latter 's  right  was 
upheld  as  a  new  appropriation  by  actual  diversion  and  use.  In 
Griseza  v.  Terwilliger  5  it  was  held  that  a  transferee  under  a  parol 
sale  of  the  water-right  takes  no  title  by  virtue  of  the  sale,  because 
of  the  statute  of  frauds,  but- if  he  actually  takes  possession  and 
uses  the  water,  he  has  a  good  title  as  a  new  appropriator  by  actual 
diversion,  though  the  code  formalities  were  not  performed.  In 
Idaho  it  has  been  held  that  one  having  actually  used  the  water  is 
an  appropriator  by  actual  diversion,  and  the  fact  that  he  there- 
after posted  -a  notice  does  not  impair  his  right  to  claim  as  such 
instead  of  under  the  notice.6 

In  other  States,  while  following  the  original  method  of  appro- 
priation, the  same  result  was  reached.  The  Montana  court  said 
(after  quoting  from  De  Necochea  v.  Curtis  and  Wells  v.  Mantes, 
supra) :  "We  think  the  construction  of  the  statute  by  the  supreme 
court  of  California  is  logical  and  correct,  and  are  of  the  opinion 
that  the  Montana  act  should  be  construed  in  the  same  manner."7 
Likewise  in  Alaska,  Colorado,  Idaho,  Nevada,  Utah,  Washington 
and  Wyoming.8 

25  Citing  (in  addition  to  the  cases  3  99  Cal.  583,  34  Pac.  324. 

cited     in     note    above)     McGuire    v.  4  106   Cal.   392,   39   Pac.  807. 

Brown,   106   Cal.    672,   39   Pac.    1060,  5  144  Cal.  456,  77  Pac.  1034;  infra, 

30  L.  R.  A.  384;  Cardoza  v.  Calkins,  sec.  555. 

117  oal.  112,  48  Pac.  1010,  18  Morr.  e  Brown  v.  Newell,  12  Idaho,  166, 

Min.  Rep.  689 ;  McDonald  v.  Bear  R.  85  Pac.  385. 

etc.  Co.,  13  Cal.  238,  1  Morr.  Min.  7  Murray  v.  Tingley,  20  Mont.  260, 
Rep.  626;  Kimball  v.  Gearhart,  12  50  Pac.  724,  19  Morr.  Min.  Rep.  137. 
Cal.  29,  1  Morr.  Min.  Rep.  615;  Kelly  See,  also,  Salazar  v.  Smart,  12  Mont, 
v.  Natoma  W.  Co.,  6  Cal.  105,  1  Morr.  395,  30  Pac.  676;  Morris  v.  Bean 
Min.  Rep.  592;  Hill  v.  King,  8  Cal.  (Mont.),  146  Fed.  425. 
336,  4  Morr.  Min.  Rep.  533;  Hoff-  8  Alaska. — "Inasmuch  as  the  stat- 
man  v.  Stone,  7  Cal.  46,  4  Morr.  Min.  utes  of  Alaska  make  no  provision  re- 
Rep.  520.  specting  the  necessity  of  either  the 

1  80  Cal.  397,  20  Pac.  563,  22  Pac.  posting  or  recording  of  notices  of  ap- 
198.  propriation  of  waters  upon  the  public 

2  Affirmed  in  Burrows  v.  Burrows,  land,  we  think  no  such   notice  essen- 
82  Cal.  564,  23  Pac.  146.  tial  to  the  validity,"  etc.;  Van  Dyke 


394  (3d  ed.)       Pt.  III.     THE  LAW  OF  PRIOR  APPROPRIATION.       §  366 


(3d  ed.) 

§  366.  Settlement  on  Stream  Banks  not  Alone  Enough — No 
Preference  to  Riparian  Owners. — While  the  statutory  formalities 
are  thus  dispensed  with  in  favor  of  an  appropriator  by  actual 
diversion,  that  is  as  far  as  the  law  goes  in  dispensing  with 
formalities.  The  law  of  appropriation  recognizes  no  rigkt  flow- 
ing from  merely  settling  on  the  banks  of  a  stream.  A  settlement 
on  the  banks  does  not  constitute  an  appropriation  where  nothing 
more  is  done.  A  riparian  owner  may  have  riparian  rights  in 
California,  but  must  proceed  like  anyone  else  if  he  wishes  a 
water-right  in  jurisdictions  following  the  Colorado  doctrine 
where  riparian  rights  are  not  recognized.9  Aside  from  the  ques- 
tion of  riparian  rights,  elsewhere  considered,  the  settlement  does 
not  per  se  give  any  right  to  the  water.10  In  one  case,11  the  land 


v.   Midnight   Sun   Co.    (Alaska   C.   C. 
A.),  177  Fed.  90. 

California. — Cases    cited   supra. 

Colorado. — Sieber  v.  Frink,  7  Colo. 
148,  2  Pac.  901 ;  Water  Supply  Co.  v. 
Larimer  Co.,  24  Colo.  322,  51  Pae. 
496,  46  L.  R.  A.  322;  Denver  Co.  v. 
Dotson,  20  Colo.  304r  38  Pac.  322; 
Hoge  v.  Eaton,  135  Fed.  411. 

Idaho. — Sand  Point  etc.  Co.  v. 
Panhandle  etc.  Co.,  11  Idaho,  405,  83 
Pac.  347;  Brown  v.  Newell,  12  Idaho, 
166,  85  Pac.  387;  Pyke  v.  Burnside, 
8  Idaho,  487,  69  Pac.  477. 

Montana. — Murray  v.  Tingley,  20 
Mont.  260,  50  Pac.  723,  19  Morr.  Min. 
Rep.  137;  Morris  v.  Bean,  146  Fed. 
425,  affirmed  in  159  Fed.  651. 

Nevada. — Ophir  etc.  Co.  v.  Carpen- 
ter, 4  Nev.  534,  97  Am.  Dec.  550,  4 
Morr.  Min.  Rep.  640.  See,  also,  S. 
C.,  6  Nev.  393. 

•  Utah. — "Any  person,  however,  who 
actually  used  the  water  for  a  useful 
or  beneficial  purpose,  acquired  the 
right  to  take  the  water  so  used  as 
against  all  subsequent  claimants,  re- 
gardless of  whether  the  user  had 
posted  notices  or  not."  Patterson  v. 
Ryan  (Utah),  108  Pac.  1118,  speak- 
ing of  the  method  before  the  present 
statutes  requiring  application  to  the 
State  Engineer.  See,  also,  Sowards 
v.  Meagher  (Utah,  1910),  108  Pac. 
1113,  citing  Murray  v.  Tingley,  supra. 

Washington. — Kendall  v.  Joyce,  48 
Wash.  489,  93  Pac.  1091. 

Wyoming. — Morris  v.  Bean  (Mont., 
but  construing  Wyoming  law),  146 
Fed.  425,  affirmed  in  159  Fed.  651. 


Miscellaneous. — See,  also,  60  Am. 
St.  Rep.  800,  note. 

9  "In   order  to   acquire   a   prior   or 
superior    right    to    the    use    of    such 
water,  it  is  as  essential  that  a  ripa- 
rian owner  locate  or  appropriate  the 
waters  and  divert  the  same  as  it  is  for 
any   other   user   of   water   to   do   so." 
Hutchinson  v.  Watson  D.  Co.   (1909), 
16  Idaho,  484,  133  Am.  St.  Rep.  125, 
101   Pac.    1059. 

"Some  contention  is  made  that  said 
act  of  the  legislature  does  not  apply 
to  persons  who  own  the  land  on  both 
sides  of  the  stream,  and  therefore  own 
the  bed  of  the  stream,  and  for  that 
reason  a  riparian  owner  is  not  re- 
quired to  pay  the  fees  provided  in 
said  act.  There  is  nothing  in  that 
contention."  Idaho  etc.  Co.  v.  Ste- 
phenson  (1909),  16  Idaho,  418,  101 
Pac.  821. 

10  Walsh  v.  Wallace,  26  Nev.   299, 

99  Am.   St.   Rep.   692,   67   Pac.   914; 
Leggat  v.   Carroll,  30   Mont.   384,   76 
Pac.   805 ;    Robinson  v.   Imperial  etc. 
Co.,   5  Nev.  44,  ^0   Morr.   Min.   Rep. 
370;  Willey  v.  Decker,  11  Wyo.  496, 

100  Am.   St.   Rep.   939,  73   Pac.   210, 
saying:    "Under  the  decisions  of  this 
court    that    fact    alone    confers    upon 
them  no  title  to  a  right  to  the  use  of 
the  waters  of  the  stream."     Van  Dyke 
v.   Midnight   Sun   Co.    (Alaska),    177 
Fed.   90,   100   C.   C.   A.   503;    McFar- 
land  v.  Alaska  etc.  Co.,  3  Alaska,  308 ; 
Snyder  v.  Colorado  etc.  Co.   (Colo.  C. 
C.  A.),  181  Fed.  62. 

11  Walsh   v.   Wallace,   cited   supra. 


§366  Ch.  17.     HOW   APPROPRIATION    IS   MADE.      (3d  ed.)   395 

was  settled  upon  for  agricultural  purposes,  but  the  water  was  not 
diverted,  and  as  riparian  rights  are  not  recognized  in  Nevada, 
the  settler  was  held  to  have  no  right  to  the  water.  In  another  12 
the  land  was  taken  up  for  a  millsite  and  the  court  said:  "The 
digging  of  a  ditch  on  public  land  is  not  an  appropriation  of  the 
land  for  a  millsite,  nor  is  the  mere  appropriation  of  a  millsite 
an  appropriation  of  water  for- purposes  of  milling."  "It  would 
be  as  absurd  to  say  that  the  digging  of  a  ditch  is  an  appropriation 
of  land  sufficient  for  a  millsite,  as  to  say  that  to  appropriate  a 
millsite  would  be  an  appropriation  of  water  for  milling  pur- 
poses." Location  of  a  placer  mining  claim  in  the  bed  of  a  stream 
is  not  an  appropriation  of  the  water  in  the  stream.13  Nor  is  a 
patented  placer  mine.14 

In  Schwab  v.  Beam,15  Judge  Hallett  did  hold  that  the  location 
of  a  placer  claim  gave  a  right  to  the  water  thereon.  The  court 
used  the  following  words:  "Nothing  in  the  constitution  of  this 
State  or  in  the  law  relating  to  irrigation  in  any  way  modifies  or 
changes  the  rules  of  the  common  law  in  respect  to  the  diversion 
of  streams  for  manufacturing,  mining  or  mechanical  purposes. 
In  Colorado,  as  elsewhere  in  the  United  States,  the  law  is  now 
as  it  has  been  at  all  times,  that  for  such  purposes  each  riparian 
owner  may  use  the  waters  of  running  streams  on  his  own  prem- 
ises, allowing  such  waters  to  go  down  to  subsequent  owners  in 
their  natural  channel."  This  seems  to  show  that  the  decision 
rested  not  on  the  principles  of  appropriation,  but  on  those  of 
riparian  rights.  The  placer  claimant  under  the  California 
doctrine  has  a  right  to  the  water  in  that  way,10  but  not  by 
appropriation.  Schwab  v.  Beam  would  seem  to  be  an  attempt 
to  apply  the  California  doctrine  in  Colorado,  a  position  which 

12  Robinson    v.    Imperial    etc.    Co.,  Co->    3    Alaska,    63 ;    Cascade    Co.    v. 
supra.    One  of  these  passages  is  quoted  Empire   Co.    (Colo.),   181   Fed.    1011. 
from   the   headnote   and   the   other   is  l4  Snyder     v.     Colorado     etc.     Co., 
from  the  opinion.  «»fja.  ^  Q   ^^  ^  ^  ^  ^ 

13  Van  Dyke  v.   Midnight  Sun  Co.  Min-  Rep_  279.     Cited  with  approval 
(Alaska),  177  Fed.  90;   100  C.  C.  A.  in     Madigan     v.     Kougarok     Co.,     3 
503 ;    McFarland   v.    Alaska   etc.   Co.,  Alaska,  63 ;  Cascade  Co.  v.  Empire  Co. 
3  Alaska,  308 ;  Snyder  v.  Colorado  etc.  (Colo.),   181   Fed.   1011;    with   disap- 
Co.    (Colo.   C.   C.   A.),   181   Fed.   62;  proval  in  Snyder  v.  Colorado  etc.  Co. 
Leggatt  v.  Carroll,  30  Mont.  384,  76  (Colo-   Q    c>   A>^   181    Fed     62> 
Pac.  805.  16  Crandail  v.   Woods,    8   Cal.    136, 

But  see  Schwab  v.  Beam  (C.  C.  1  Morr.  Min.  Rep.  604;  Leigh  v.  In- 
Colo.),  86  Fed.  41,  10  Morr.  Min.  dependent  Ditch  Co.,  8  Cal.  323,  12 
Rep.  279;  Madigan  v.  Kougarok  M.  Morr.  Min.  R«p.  97. 


396  (3d  ed.)       Pt.  III.     THE  LAW  OF  PEIOE  APPEOPEIATION.       §  367 

the  State  court  repudiates.17  The  case  has  been  criticised;18 
is  contrary  to  the  weight  of  more  recent  authority  just  cited, 
and  is  probably  overruled.19 

(3d  ed.) 

§  367.  Same. — There  are  hardships  in  the  strict  enforcement 
in  this  rule,  and  they  will  increase  as  settlement  increases'. 
Riparian  lands  have  certain  benefits  from  the  natural  flow  itself 
even  when  not  diverting  the  water,  and  also,  because  of  their 
favorable  situation,  afford  opportunities  for  uses  requiring  no 
diversion,  such  as  domestic  use,  fishing,  etc.  How,  in  States 
rejecting  riparian  rights,  shall  these  natural  benefits  be  preserved 
against  others  appropriating  the  water  for  sale  for  their  own 
profit,  or  some  appropriators  who  are  largely  but  wasting  the 
water?  If  they  are  not  preserved,  then  ownership  of  riparian 
land  would  be  an  absolute  disadvantage;  so  favorably  situated 
that  domestic  use  or  natural  irrigation  requires  no  diversion,  its 
use  could  be  destroyed,  while  distant  unfavorably  situated  land 
requiring  diversion,  would  be  protected  in  use. 

To  meet  the  situation,  statements  are  appearing  in  the  reports 
to  the  effect  that  proof  of  benefit  to  the  land  by  natural  sub- 
irrigation  will  constitute  such  natural  subirrigation  an  appro- 
priation by  actual  use,  though  without  diversion.  Thus  in  an 
Idaho  case20  it  is  said:  "So  far  as  the  record  shows,  appellants' 
land  may  produce  crops  by  subirrigation,  hence,  never  necessary 
to  make  an  appropriation  of  any  of  the  waters  of  the  streams"; 
and  in  the  same  court  it  was  held21  that  while  the  fact  that  a 
stream  in  its  original  native  condition  was  dammed  so  as  to 
cause  the  waters  to  percolate  through  and  subirrigate  adjacent 
meadow  lands  will  not  of  itself  justify  the  owner  of  such  lands 
in  maintaining  the  stream  dammed  in  such  condition  to  the  injury 
of  other  appropriators,  yet  it  may,  on  the  other  hand,  be  suffi- 
cient to  initiate  a  right  for  a  quantity  of  the  waters  of  such 

IT  Supra,  sec.  118.  aside  from  riparian  rights.     Mill's  Ir- 

18  Morrison's   Mining  Eights,   elev-  rigation  Manual,  p.  39. 

enth  edition,  page  180,  saying:  "This  19  See  Snyder  v.  Colorado  etc.  Co., 

is  an  extreme  holding  on  what  seems  supra.     But  see   Cascade   Co.  v.   Em- 

to  us  a  very  doubtful  position."     In  pire  Co.,  181  Fed.  1011. 

the  twelfth  edition:    "This  is  an  ex-  20  Hill    v.    Standard    Min.    Co.,    12 

treme  holding,  and  seems  to  us  an  in-  Idaho,  223,  85  Pac.  907. 

defensible     position."     And     recently  21  Van  Camp  v.  Emery,  13  Idaho, 

doubted  whether  tenable  as  a  propo-  202,  89  Pac.  752. 
sition  under  the  law  of  appropriation 


§367 


Ch.  17.     HOW  APPROPRIATION   IS   MADE.      (3ded.)  397 


stream  adequate  for  the  surface  irrigation  of  the  lands  previously 
so  subirrigated  therefrom.  So  in  Colorado  there  is  a  statute 
that  natural  overflow  or  natural  subirrigation  benefiting  land 
may  be  converted  into  a  ditch  diversion  with  priority  as  of  the 
time  of  the  first  cultivation  of  the  land.22 

Such  a  rule,  if  generally  adopted,  would  be  a  long  step  toward 
a  return  to  the  rule  oj:  riparian  rights.  The  natural  advantage 
of  the  riparian  land  of  being  washed  by  the  stream  in  this 
respect  (as  well  as  others)  is  the  foundation  of  the  common-law 
riparian  right.  In  fact,  in  Idaho  a  solution  has  more  recently 
been  sought  by  a  partial  return  to  the  common  law  of  riparian 
rights  itself.23  Under  this  decision  it  seems  to  be  the  Idaho 
rule  that  a  riparian  settler  actually  using  the  water  may,  if  not 
making  his  use  by  means  of  a  diversion,  be  deprived  of  all  of 
it  by  a  bona  fide  diversion  by  someone  else,  but  may  question 
the  bona  fides  of  such  other  person.24  Somewhat  similarly  in 


22  Colo.     Rev.     Stats.     1908,     sec. 
3176;    Gen.    Stats.,    sec.    1723;    Laws 
1879,  p.  176,  sec.  37.     Compare  Wash- 
ington,   Pierce's    Code     (1905),    sec. 
5830. 

Under  this  Colorado  statute,  called 
the  "Meadow  Act,"  the  riparian  sub- 
irrigative  appropriation  must  be 
claimed  upon  the  rendition  of  any 
decree  settling  rights  upon  the 
stream,  or  is  barred  by  the  decree 
like  other  rights,  even  if  the  Io3s  of 
subirrigation  is  not  at  that  time  such 
as  to  indicate  the  necessity  for  a 
change  from  the  natural  .to  a  ditch 
irrigation  and  such  necessity  does  not 
arise  until  several  years  later.  If, 
however,  the  riparian  owner  con- 
structs a  ditch  while  the  adjudica- 
tion proceedings  -are  pending  and 
applies  to  the  court  for  recognition 
thereof  in  the  pending  proceedings, 
his  ditch  will  be  allowed  a  right  dat- 
ing back,  by  relation,  "to  the  time 
when  they  first  enjoyed  the  benefits 
of  the  natural  overflow  of  the 
stream."  Broad  Run  etc.  Co.  v.  Deuel 
etc.  Co.,  47  Colo.  573,  108  Pac.  755. 
See,  also,  Humphreys  T.  Co.  v.  Frank, 
46  Colo.  524,  105  Pac.  1093. 

Compare  Hilger  v.  Sieben,  38  Mont. 
93,  98  Pac.  881. 

23  Supra,  sec.  185.    Under  this  recent 
ruling,  when  no  use  is  made  by  the  ap- 
propriator  (or  when  the  appropriator 
using  the  water  has  not  complied  with 


the  statutes  for  making  an  appro- 
priation) the  riparian  owner  has  a 
kind  of  residuum  of  right  which  then 
will  (as  riparian  right)  entitle  him  to 
an  injunction  to  protect  his  domestic 
use  and  his  natural  subirrigation,  ir- 
respective of  appropriation.  Hutch- 
inson  v.  Watson  D.  Co.  (1909),  16 
Idaho,  484,  133  Am.  St.  Rep.  125, 
101  Pac.  1059.  The  court  held  that  a 
showing  by  a  riparian  proprietor  that 
he  has  been  for  more  than  seventeen 
years  using  the  water  of  a  stream  for 
domestic,  culinary  and  household  pur- 
poses and  for  the  use  of  his  livestock, 
and  tnat  the  water  of  the  stream  has 
continuously  flowed  through  his  land 
"moistening  the  same,"  does  not 
amount  to  an  appropriation  of  any 
of  the  water  of  the  stream;  but  that, 
at  the  same  time,  the  rights  of  this 
riparian  proprietor  to  use  the  water 
for  domestic  and  culinary  purposes 
and  watering  stock,  and  to  have  the 
water  flow  by  or  through  his  prem- 
ises, as  at  common  law,  are  superior 
and  paramount  to  the  rights  of  a 
stranger  or  intermeddler  who  does  not 
assert  or  establish  any  right  to  the 
use  of  water  by  beneficial  appropria- 
tion. 

24  What,  if  any,  is  the  bearing  upon 
this  point  of  the  preference  to  domes- 
tic use  in  the  Idaho  Constitution? 

See  supra,  sec.  308. 


398  (3d  ed.)       Pt.  III.     THE  LAW  OF  PEIOR  APPROPRIATION.       §  368 

Oregon,  under  the  recent  abrogation  there  of  riparian  rights,  the 
law  still  gives  a  limited  right  as  riparian  owner,  extending  to 
the  preservation  of  a  flow  (though  unused)  for  possible  domestic 
use.25 

A  late  case  furnishes  an  excellent  illustration  of  the  difficulty 
of  the  situation,  and  how  the  law  of  appropriation  is  being 
strained  to  meet  it.  A  waterfall  in  a  canyon  in  Colorado  made 
a  natural  garden.  The  spray  and  seepage  watered  ferns  and 
foliage  which  added  to  the  beauty  of  the  falls.  Drawn  by  these 
natural  attractions,  plaintiff  acquired  the  surrounding  land, 
built  a  hotel  and  established  a  health  and  pleasure  resort,  which 
acquired  patronage  and  name.  Defendant,  a  light  and  power 
company,  started  to  divert  the  stream  above  the  falls  to  generate 
electric  power  without  returning  the  water.  Although  the  owner 
of  the  resort  had  made  no  diversion,  nor  done  any  work  beyond 
building  houses  and  improving  the  banks  of  the  stream,  yet  he 
was  held  to  have  actually  appropriated  the  water,  and  the  power 
diversion  was  enjoined.1  Although  the  court,  in  words,  stren- 
uously denies  the  existence  of  the  riparian  doctrine  in  Colorado,  yet 
a  clearer  application  of  it  in  fact  is  difficult  to  imagine. 


B.     TO  SECURE  THE  BENEFIT  OF  RELATION. 
(3d  ed.) 

§  368.  Object  of  Statutory  Provisions. — The  early  customs 
out  of  which  the  law  of  appropriation  grew  were  based  (as  has 
been  already  discussed)  on  the  principle  that  rights  on  the  public 
domain  were  open  to  all,  the  first  possessor  being  protected ;  and 
that  all,  also,  should  have  an  equal  chance.  As  is  said  in  Nevada 
etc.  Co.  v.  Kidd,2  they  did  not  countenance  anyone  acting  "the 
dog  in  the  manger."  Many  attempted  to  secure  monopoly  of 

25  Supra,  sec.  129,  holding  that  set-  propriation  for  mining,  irrigation,  or 

tlement  upon  land  bordering  upon  or  power  purposes,  some  steps  toward  a 

through  which  a  stream  may  flow,  or  diversion  thereor,  or  other  good  and 

to   which   a   natural   source   of   water  sufficient  notice,  is  necessary).    Hough 

supply    may    be    adjacent,    or    upon  v.  Porter,  ol  Or.  318,  95  Pac.  782,  98 

which   it   may   be   situated,   in   itself,  Pac.   1083,  102  Pac.  728. 

gives  a  riparian  right  for  a   flow  of  1  Cascade      Co.      v.      Empire      Co. 

sufficient  water  for  domestic  uses  and  •  (Colo.),  181  Fed.  1011,  citing  Schwab 

requirements    incident   thereto    which,  v.  Beam,  supra.     Contrast  Schodde  v. 

even   though   not   now   in   actual   use,  Twin  Falls  Co.  (Idaho),  161  Fed.  43, 

may  continue  to  be  demanded  (though  88  C.  C.  A.  207. 

riparian  rights  are  held  abrogated  for  2  37  Cal.   282,  and   in  Union   Min- 

other  purposes  as  to  all  land  patented  ing  Co.   v.   Dangberg,   81   Fed.    73. 
since  1877,  and  to  constitute  an  ap- 


§369  Ch.  17.     HOW  APPROPRIATION   IS   MADE.      (3d  ed.)  39i! 

waters  by  merely  posting  notices  or  making  a  pretense  at  build- 
ing canals,  ditches,  etc.,  and  tried  by  this  means  to  hold  a  right 
to  the  water  against  later  comers  who  bona  fide  sought  to  con- 
struct the  necessary  works  for  its  use.3  From  those  conditions 
grew  up  a  method  of  making  an  appropriation  to  apply  specially 
to  rival  claimants  while  the  construction  work,  often  prolonged, 
was  going  on.  If  the  first  comer  bona  fide  and  diligently  prose- 
cuted his  work,  his  right  on  its  completion  related  back  to  the 
very  beginning  of  it;4  otherwise  the  others  were  preferred. 
This  method  of  making  the  appropriation  was,  under  the  early 
decisions,  substantially  the  same  as  that  now  provided  for  this 
purpose,  in  the  Civil  Code  of  California.5  The  provisions  of 
the  Civil  Code  of  California  are  merely  to  fix  the  procedure 
whereby  a  certain  definite  time  might  be  established  as  the  date 
at  which  title  should  accrue  by  relation.8 

(3d  ed.) 

§  369.    Provisions  Chiefly  Declaratory  Only. — In  codifying  the 

rules  governing  this  method  in  California  (and  the  early  statutes 
of  other  States  based  thereon),  the  rules  laid  down  in  the  decis- 
ions of  the  court  were  not  materially  changed;  for  the  whole 
code  upon  this  subject  is  substantially  only  declaratory  of  the 
pre-existing  law.7 

The  innovations  consist  in  the  following:  A  notice  expressing 
certain  details  in  writing  is  required.8  Before  the  code,  notice  was 
a  requisite,  but  it  did  not  have  to  be  a  written  notice,9  nor,  conse- 

3  "These  water-right  cases  are  pe-       594;  Nevada  etc.  Co.  v.  Kidd,  37  Cal. 
culiar  in  their  nature,  in  that  the  par-       282. 

ties  are  obliged  to  depend  to  so  great  5  Sees.  1410-1422. 

an  extent  upon  the  memories  of  those  fl  De    Necochea   v     Curti      8Q    Cal 

who   came   to   a   new   country   in   the  ^    2(J  p&c    5g3    22  pa(j    fa     Weljg 

early   days.         .      This- record   seems  v   M  Qg  ^  M  pa'c 

to    disclose    the    fact    that    there    ex-  Duckworth'    V-    Watsonville    Co.,    158 

isted  in  the 'minds  of  those  who  first  p  ,    Oflfi    11f.  p        Q97    • 

-1-11          j  "11  /"I  1  J*  il  *    'di.         UVUfl         -L  J-U         -L     ttL.,          tf&lm 

went  upon  Flatwillow  Creek   for  the  ' 

purpose  of  locating,  a  sort  of  general  7  De   Necochea   v.    Curtis,    80    Cal. 

plan   to   take   up   large   areas   of   the  397,  20  Pac.  563,  22  Pac.  198;  Wells 

public  lands,  together  with  the  water  v.  Mantes,  99  Cal.  583,  34  Pac.  324; 

necessary   to   irrigate   the  ground,   so  Pomeroy  on  Riparian  Rights,  sec.  96 ; 

that  they  might  afterward  dispose  ot  Blanchard     and     Weeks     on     Mining 

the    same    to    the   larger   landowners.  Claims    and    Water    Rights,    p.    696; 

Almost   every   person   whose   name   is  Kmney  on  Irrigation,  sec.  351. 

mentioned  in  the  testimony  located  a  8  Cal.  Civ.  Code,  1415. 

claim  and  took  out  a  ditch."     Wright  9  De    Necochea   v.    Curtis,    80    Cal. 

v.  Cruse,  37  Mont.  177,  95  Pac.  370.  397,    at    406,    20    Pac.    563,    22    Pac. 

4  Conger    v.    Weaver.    6    Cal.    548,  198;    Norman    v.    Corbley,    32    Mont. 
65  Am.  Dec.  528,  1  Morr.  Min.  Rep.  195,  79  Pac.  1059. 


400   (3d  ed.)       Pt.  III.     THE  LAW  OF  PRIOR  APPROPRIATION.       §  370 

quently,  did  it  have  to  express  the  present  required  details.  Acts 
such  as  would  put  a  man  on  inquiry — some  unequivocal  outward 
acts,  such  as  making  a  preliminary  survey — were  notice  enough.10 
It  became  customary,  however,  to  post  a  written  notice,  even 
before  the  code.11  The  other  point"  was  where  the  code  specifies 
that  work  must  be  begun  within  sixty  days  after  posting  a 
notice,12  whereas  before  the  code  it  was  a  question  to  be  decided 
by  the  jury  whether  the  delay  was  unreasonable,  and  no  number 
of  days  was  fixed.13  The  time  for  commencing  in  the  absence 
of  statute  is  any  reasonable  time.14 

(3d  ed.) 

§  370.    Essential  Requisites. — There  are  four  requisites  in  all 

that  must  be  complied  with,  to  secure  the  benefit  of  the  doctrine 
of  relation  under  the  California  method  and  the  statutes  of  other 
States  based  thereon,  viz.:  First,  a  notice  must  be  posted  at  the 
start;  second,  there  must  be  an  intention  to  apply  the  water  to 
a  beneficial  purpose;  third,  the  work  must  be  prosecuted  with 
diligence;  fourth,  it  must  be  actually  completed.  We  proceed 
to  consider  each  of  these  separately.15 

10  Parke  v.  Kilham,  8  Cal.   77,  68  mons  v.  Winters,  21  Or.  35,  28  Am. 
Am.  Dec.  310,  4  Morr.  Min.  Rep.  522;  St.  Rep.  727,  27  Pac.  7;   Hindman  v. 
Kimball   v.   Gearhart,    12    Cal.   27,    1  Rizor,  21  Or.   112,   27   Pac.  13;   Low 
Morr.  Min.  Rep.  615.  v.    Rizor,    25    Or.    551,    37    Pac.    82; 

11  See  Weaver  v.  Eureka  etc.  Co.,  Nevada   etc.   Co.   v.   Bennett,   30   Or. 
15  Cal.  271,  1  Morr.  Min.  Rep.  642;  59,    60    Am.    St.    Rep.    777,    45    Pac. 
and  statement  of  reporter,  in  Titeomb  472.     Another    summing    up    of    the 
v.    Kirk,   51   Cal.   288,   5   Morr.   Min.  rules    is    as    follows:     "It   seems   the 
Rep.  10.  settled  law  in  the  States  where  irri- 

12  Cal.  Civ.  Code,  1419.  gation  problems  have  been  dealt  with 

13  Infra,  sec.   382   et  seq.  that,  in  order  to  acquire  a  vested  right 

14  Cruse  v.   McCauley    (Mont.),   y6  in  the  use  of  water  for  such  purposes 
Fed.  369.  from  the  public  streams,  three  things 

is  In  Oregon  the  requisites  are  must  concur :  There  must  be  the  eon- 
summed  up:  "The  rule  is  settled  in  struction  of  .ditches  or  channels  for 
this  state  that  to  constitute  a  valid  carrying  the  water;  the  water  must 
appropriation  of  water  there  must  be  be  diverted  into  the  artificial  chan- 
(1)  an  intent  to  apply  it  to  some  nels,  and  carried  through  them  to  the 
beneficial  use,  existing  at  the  time  place  to  be  used;  and  it  must  be 
or  contemplated  in  the  future;  (2)  a  actually  applied  to  beneficial  uses,  and 
diversion  thereof  from  a  natural  he  flas  the  best  right  who  is  first  in 
stream;  and  ^3)  an  application  of  it  time."  Gates  v.  Settlers  Co.,  19  Okl. 
within  a  reasonable  time  to  some  83,  91  Pac.  856. 

useful    industry."     Beers    v.    Sharpe,  As  to  actual  application  to  use  as 

44  Or.  386,  75  Pae.  717,  citing  Sim-  an  element,  see  infra,  sec.  495. 


§  C71       .;;         Ch.17,    HOW  APPROPRIATION  IS  MADE.      (3ded.)  401 

C.     NOTICE. 

(3d  ed.) 

§  371.  Form  of  Notice.— In  the  California  Civil  Code,16  it  is 
provided  that  a  notice  must  be  posted  at  the  point  of  intended 
diversion,  stating  the  amount  and  purpose  and  place  and  means 
of  use,  and  be  recorded  within  ten  days.  Section  1415  is  as 
follows : 

"NOTICE  OP  APPROPRIATION. — A  person  desiring  to  appropriate 
water  must  post  a  notice,  in  writing,  in  a  conspicuous  place  at 
the  point  of  intended  diversion,  stating  therein : 

"1.  That  he  claims  the  water  there  flowing  to  the  extent  of 
(giving  the  number)  inches  measured  under  a  four-inch  pres- 
sure; 

"2.  The  purposes  for  which  he  claims  it,  and  the  place  of  in- 
tended use; 

"3.  The  means  by  which  he  intends  to  divert  it,  and  the  size 
of  the  flume,  ditch,  pipe,  or  aqueduct  in  which  he  intends  to 
divert  it.  A  copy  of  the  notice  must,  within  ten  days  after  it 
is  posted,  be  recorded  in  the  office  of  the  recorder  of  the  county 
in  which  it  is  posted. 

"After  filing  such  copy  for  record,  the  place  of  intended  diver- 
sion or  the  place  of  intended  use  or  the  means  by  which  it  is 
intended  to  divert  the  water,  may  be  changed  by  the  person  post- 
ing said  notice  or  his  assigns  if  others  are  not  injured  by  such 
change.  This  provision  applies  to  notices  already  filed  as  well 
as  to  notices  hereafter  filed.".17 

16  Sections   1415,   1421.  for  which  said  water  is  claimed,  and 

"  En.  March  21,  1872;  Amd.  1903,  the   place   of    intended    use;    3.     The 

361.     A    form    of    notice    under    this  name    of   the    stream,    creek,    spring, 

section  that   has  been  upheld  by   de-  canyon,  river  or  ravine;  4.  The  name 

cision   is    given   in   the   part    of    this  of  the  appropriator  or  appropriators ; 

book    containing    forms.     Infra,    sec.  5.  The   date  of  posting  said  notice." 

1460.  In   Washington   the    statute    is   al- 

In    Montana     (Statutes    of     1907,  most    identical    with    the    California 

chapter    185,   page   489)    the    statute  section  (See  infra,  sec.  741),  and  also 

provides:     Sec.   4.     "Any    person   de-  provides:    "A  copy  of  the  notice  must, 

siring   to    appropriate    water    in    any  within    ten     (10)     days    after    it    is 

etream,  creek,  canyon,  river  or  ravine,  posted,  be  filed  for  record  in  the  office 

wherein   the   rights   of   water   therein  of  the  county  auditor  of  the  county  in 

have  been   adjudicated   and    decreed,  which   it   is   posted."     Pierce's   Code, 

shall   post  a   notice  in  writing  in  a  sec.  5132. 

conspicuous  place  at  the  point  of  the  In    Alaska,    an    act    of    Congress 

intended    diversion,    stating    therein:  (Alaska  Act  June  6,  1900,  31   Stats. 

1.  The    flow     claimed,     expressed     in  at  Large,   321,  sec.   15)    provides  for 

cubic  feet  per  second ;  2.  The  purpose  the   record   of   "waters    and    declara- 
Water  Bights — 26 


402  (3d  ed.)       Pt.  III.     THE  LAW  OF  PRIOR  APPROPRIATION.       §  372 
(3d  ed.) 

§  372.  Contents  and  Recording  of  Notice. — What  constitutes 
an  inch  of  water  varies  in  different  localities.18 

The  statement  of  a  definite  place  of  use  is  sufficient  as  to  that 
place,  though  joined  with  an  indefinite  statement  of  intent  to 
sell  water  to  others  for  use  on  land  not  specified ; 19  and  a  state- 
ment that  the  means  used  shall  be  "by  a  six-inch  pipe  or  by  a 
pipe  of  other  dimensions"  is  sufficient  to  cover  a  diversion  of 
so  much  as  a  six-inch  pipe  would  carry,  within  the  number  of 
inches  stated  in  the  notice.20  Where  identical  notices  are  posted 
for  different  diversions,  only  one  copy  needs  to  be  recorded.21 
Where  two  notices  are  posted  two  hundred  feet  apart,  they  are 
substantially  both  in  the  same  place.22 

The  notice  is  not  ^  expressly  required  by  statute  to  be  verified, 
and  acknowledgment  has  been  held  unnecessary,  and  is  omitted 
in  practice.24  It  has  recently  been  held  that  the  notice  of  appro- 
priation need  not  be  acknowledged  before  recording  it  or  at  all.25 
The  notice  of  appropriation  is  in  this  respect  similar  to  location 
notices  of  mining  claims  on  public  land,  which,  also,  do  not  require 
acknowledgment  before  recording.1 

The  notice  may  be  posted  in  a  forest  reserve,  if  the  Federal 
requirements  concerning  appropriations  in  forest  reserves  are 
also  complied  with.2 

(3d  ed.) 

§  373.     Purpose  of  the  Notice.— The  notice  is  chiefly  to  fix  the 

date  at  which  the  appropriator's  title,  on  completion,  shall  accrue 

tions    of    water-rights,"    but    leaving  vitiates  it.     Duckworth  v.  Watsonvme 

their  form  and  effect  to  local  mining  Co.,  158  Cal.  206,  110  Pac.  927. 

district    rules,    and    these    local    rules  22  Beckwith  v.  Sheldon  (1908),  154 

usually     copy     the     California     Civil  QJ    393^  97  pac    867 

Code  sections.  23  Under  Cal    Ci      Co(J      ge(J    141g 

18  See  infra,  sec.  486.     The  statute 

of   1901,  page  600,  in  California  re-  24  Another  section   (Cal.  Civ.  Code, 

quires   measurement,   in   effect,   under  H61)    requiring    acknowledgment    of 

a    six-inch     pressure.     Quoted    infra,  a11  documents  offered  for  record  has 

sec     486.     Civil    Code,    1415,    supra,  n°  application.     Whether  this  applied 

says  four-inch  pressure.  to.  *    ?otice    of    appropriation    was 

19  Duckworth    v.    Watsonville    etc.  ^ised  in  the  briefs  of  Mr.  Hall  Mc- 
Co     150  Cal.  520,  89  Pac.  338;  Same  Alhster   in  Lux  v.   Haggm,   but   was 
v.  Same,  158  Cal.  206,  110  Pac.  927.  not  touched  upon  m  the  decision    be- 

20  Ibid.     As  to  contents  of  the  no-  cause  the  appropriation  was  held  m- 
tice,   see,    further,   Floyd   v.    Boulder  valid  on  more  substantial  grounds, 
etc.  Co.,  11  Mont.  435,  28   Pac.  450.  25  De    Wolfskill    v.    Smith,    5    Cal. 

21  De   Wolfskill    v.    Smith,    5    Cal.  App.  175,  89  Pac.  1001. 
App.  175,  89  Pac.  1001.  1  Cal.  Civ.  Code,  sec.  1159. 

Quaere,    whether    nonrecording    or  2  32  Land  Dee.  145.     See  infra,  sec. 

varying    from    the    recorded    notice      430  et  seq. 


§374  Ch.  17.     HOW  APPROPRIATION   IS  MADE.      (3d  ed.)  403 

by  relation,3  or,  as  it  is  said,  the  right  on  completion  relates 
back  to  the  posting  of  the  notice.4  All  who  date  their  claim 
later  than  that  must  relinquish  their  claim  so  far  as  inconsistent 
therewith,  whether  the  later  comer  is  himself  an  appropriator5 
or  a  riparian  owner  settling  on  public  land  subsequent  to  the  post- 
ing of  the  appropriation  notice.6  The  other  purpose  of  the 
notice  is  to  set  a  limit  upon  the  extent  of  the  water-right  claimed,7 
and  to  preserve  evidence  thereof  by  having  it  recorded.8 

How  far  an  appropriator  is  bound  by  the  declaration  in  his 
notice  as  to  amount,  purpose,  means  or  place  of  use  will  be  a 
matter  for  consideration  later.  It  may  be  said  here  that  the 
appropriator  is  not  bound  by  his  notice  to  a  preliminary  base 
line  for  ditches  or  flumes,  but  may  later,  in  the  course  of  con- 
struction, within  a  reasonable  time,  change  his  surveyed  line, 
as  necessity  points  out,  without  having  to  start  and  post  a 
notice  all  over  again.9  The  notice  is  to  be  liberally  construed.10 

(3d  ed.) 

§  374.    The  Notice  Operates  as  a  Warning. — The  notice  does 

not  withdraw  the  water  then  and  there  from  use  by  others 
entirely  as  a  notice  of  discovery  withdraws  mining  ground,  but 
it  warns  others  that  later  on,  when  you  have  completed  your 
works,  you  will  have  the  right  to  so  much  water.11  It  has  been 
held  that,  in  the  meantime,  anyone  else  can  temporarily  use  the 
water,  and  you  will  have  no  action  against  him  unless  he  inter- 
feres with  your  construction  work  or  continues  to  use  the  water 
after  you  have  actually  completed  your  works.  Until  that  time 
you  have  no  action  against  him  for  diverting  the  water.  In 
Nevada  Water  Co.  v.  Kidd,12  the  court  says:  "In  view  of  this 
principle,  suppose  by  way  of  illustration  that  the  plaintiff  has 

3  Wells  v.  Mantes,  99  Cal.  583,  34          ^  Infra,  sec.  474. 

Pac.   324;    Duckworth   v.  Watsonville  8  Murray  v.  Tingley,  20  Mont.  260, 

Co.,  158  Cal.  206,  110  Pac.  927.  50  Pac.  724,  19  Morr.  Min.  Rep.  137. 

4  Cal.  Civ.  Code,  1418;   KimbalJ  v.  »  Cal.   Civ.   Code,   1415;    Conger   v. 
Gearhart,    12    Cal.    27,   1    Morr.   Min.  Weaver,  6  Cal.  548,  65  Am.  Dec.  528, 
Rep.  615;  Nevada  etc.  Co.  v.  Kidd,  37  1  Morr.  Min.  Rep.   594. 

Cal.   282;    Wells   v.   Mantes,   99   Cal.  10  Osgood   v.  "El   Dorado    etc.    Co., 

583,  34  Pac.  324.  56  Cal.  571,  5  Morr.  Min.  Rep.  37. 

5  Cal.   Civ.   Code,    1414,   1418,  and  n  "The  title  to  the  water  does  not 
cases  supra.  arise,   as   we   have  intimated   before, 

6  De    Necochea   v.    Curtis,    80   Cal.  from  the  manifestation  of  a  purpose 
397,     20     Pac.     563,     22     Pac.     198;  to  take,  but  from  the  effectual  prose- 
Broder  v.  Natoma  Water  Co.,  j.01  U.  cution  of  that  purpose."     N.  C.  &  S. 
S.   274,  25   L.   Ed.   790;   Nevada  etc.  C.  Co.  v.  Kidd,  37  Cal.  312. 

Co.  v.  Kidd,  37  Cal.  282.  12  37  Cal.  282.     Italics  inserted. 


404  (3d  ed.)       Pt.  ILL     THE  LAW  OF  PEIOE  APPEOPEIATION.       §  374 

located  its  site  for  a  dam  and  canal  and  claimed  the  waters  of 
the  South  Yuba  River  and  commenced  the  construction  of  the 
dam  and  canal,  but  in  consequence  of  the  magnitude  of  the 
work,  was  unable  for  several  years  to  divert  or  use  the  water, 
and  in  the  meantime  the  defendants,  being  men  of  greater 
pecuniary  ability,  should  consequently  locate  another  claim 
above  or  near  the  plaintiff's  and  a  canal  running  parallel  with 
the  plaintiff's  and  be  in  a  condition  to  divert  and  use  the  water 
in  half  the  time ;  their  acts,  provided  there  was  no  interference 
with  plaintiff's  site  and  location,  or  obstruction  to  the  prosecu- 
tion of  its  work,  would  be  no  injury  to  plaintiff  or  cause  of 
action  in  its  favor.  The  plaintiff  in  such  case  has,  as  yet,  no 
right  to  the  water  so  far  perfected  that  a  diversion  or  use  by 
other  parties  is  any  interference  or  injury.  But  if  the  plaintiff's 
work  should  be  prosecuted  with  diligence  and  completed,  so  as 
to  entitle  it  to  divert  and  use  the  waters,  its  right  to  the  waters 
thenceforth  would  date  by  relation  from  the  commencement  of 
the  work,  and,  should  defendants  thereafter  continue  to  divert 
the  waters  and  deprive  the  plaintiff  of  their  use,  an  injury  to 
their  water-rights  then  vested  and  perfected  would  result,  and 
a  right  of  action  for  the  injury  to  such  right  accrue."  The 
case  so  held  and  has  been  quoted  and  affirmed  on  this  point.13 
In  the  latter  case  just  cited  this  principle  was  affirmed  by  the 
Federal  court,  the  court  saying:  "It  is  obvious  that  a  person 
who  intends  to  become  an  appropriator  under  these  sections 
cannot  acquire  the  exclusive  right  to  the  use  of  the  water  he 
intends  appropriating,  nor  maintain  any  suit,  either  at  law  or 
in  equity  for  its  diversion,  until  all  the  steps  requisite  to  an 
appropriation  have  been  made."  In  Montana,14  affirming  the 
same  point,  the  court  says  that  the  appropriator  need  take  no 
notice  of  intervening  claimants  who  make  temporary  appropria- 
tions in  the  meantime. 

During  the  prosecution  of  the  construction  work  the  right 
does  exist  to  use  so  much  of  the  water  as  is  necessary  in  the 
construction  work,  to  keep  the  ditch  or  flume,  etc.,  in  repair,15 

13  Salt  Lake  City  v.  Salt  Lake  etc.  *4  Woolman  v.   Garringer,   1  Mont. 

Co.,   24   Utah,   249,   67   Pac.   672,   61  535,    1    Morr     Min.    Bep.    675      See, 

T    '           a.0  '.                  n           A    ,  also,  Miles  v.  Butte  etc.  Co.,  32  Mont. 

L.  E.  A.  648;  Emeon  etc.  Co.  v.  Ana-  5g   '7Q  pae    54g 

heim  etc.   Co.    (C.  C.  S.  Dist.  CaL),  15  Weaver  v.  Conger,  10  CaL  233, 

115  Fed.  543.  •       6  Morr.  Min.  Eep.  203. 


§375  Ch.  17.     HOW  APPROPRIATION   IS   MADE.      (3d  ed.)  405 

but  that  is  all.  For  all  purposes  except  to  make  the  temporary 
use  of  the  water  by  others  actionable,  however,  the  right  to 
the  use  of  water  on  completion  relates  back  to  the  posting  of 
the  notice,  if  the  work  has  been  prosec-uted  diligently,  and  dates 
from  the  posting  of  the  notice  as  against  those  who  come  later.10 

(3d  ed.) 

§  375.     Failure  to  Post  Notice. — The  failure  to  post  a  notice, 

or  the  posting  of  a  faulty  notice,17  constitutes  a  waiver  of  all 
advantages  that  such  a  warning  gives.  As  seen  above,  it  is 
not  fatal  if  the  work  is  nevertheless  completed  before  others 
intervene,  and  the  appropriator  may  claim  as  an  appropriator 
by  actual  diversion.18  As  against  interveners,  however,  the 
failure  is  fatal.19  Beginning  a  ditch  without  posting  notice 
gives  no  right  against  another  who  does  post  notice  before  the 
completion  of  the  former  ditch,  and  works  diligently  to  his  own 
completion.20  As  between  rival  claimants,  neither  of  whom  has 
posted  a  notice,  probably  the  result  will  be  the  same,  giving  the 
better  right  to  the  first  who  actually  diverts  and  uses  the  water.21 
It  may  be,  however,  that  they  will  be  on  the  same  footing  as 
rivals  before  the  code  (when  written  notice  was  not  needed),22 
on  the  ground  that  the  code  provisions  were  enacted  for  their 
benefit,  and  they,  refusing  to  take  advantage  of  them,  waived 
them.  In  this  view,  the  better  right  would,  by  relation,  be  in 
him  who  began  first  in  a  way  that  gave  notice  from  his  acts, 
provided  he  prosecuted  the  work  with  diligence.23  The  view 
of  the  code  taken  in  De  Necochea  v.  Curtis  and  Wells  v. 
Mantes,24  however,  would  lead  one  to  think  that  no  claim  to  the 
benefit  of  the  doctrine  of  relation  can  be  made  whatsoever,  unless 
the  code  provisions  are  strictly  complied  with.25 

16  Cal.     Civ.     Code,     1414,     1418;  Rep.  689;   Wishon  v.  Globe  etc.  Co., 

Maeris   v.    Bricknell,    7    Cal.    261,   68  158  Cal.   137,  110  Pac.  290. 

Am.  Dec.  257,  1  Morr.  Min.  Rep.  601;  22  Supra,  sec    369 

Nevada  etc.  Co.  v. ,KiM    37  Cal    282;  23  g             A       g 

Wells  v.  Mantes,  99  Cal.  583,  34  Pac.  ^   for  exam^]e>  in  Ma/ris  v/Brick'. 

«    rn        i  AKU    4L       -mQ     P    1      491  Dell>     7     Cal-     261>    68     Am-     DeC-     257 'r    * 

,7  Vay!°nra  V'  '  '       Morr-  Min-  W  607>  and  Kimball  v. 

« .  ™  ii  TUT  ao    n  i     *e*        Gerhardt,    12    Cal.   27,   1   Morr.    Min. 

18  Wells    v.    Mantes,    99    Cal.    583,       ,,        K,  S 

34  Pac.  324. 

19  Ibid~  and  De  Wolf  skill  v.  Smith,  24  Supra. 

5  Cal.  App.  175,  89  Pae.  1001.  25  Such  was  the  .result  in  the  case 

20  Ibid.  of  Murray  v.  Tingley,  20  Mont.  260, 

21  Compare  Cordoza  v.  Calkins,  117  50  Pac.  724,  19  Morr.  Min.  Rep.  137. 
Cal.  106,  48  Pac.  1010,  18  Morr.  Min. 


406  (3d  ed.)       Pt.  III.     THE  LAW  OF  PKIOE  APPROPRIATION.       §  376 

(3d  ed.) 

§  376.  Notice  Alone  not  Enough. — It  need  hardly  be  said  that 
merely  posting  a  notice  is  not  enough  unless  the  other  requisites 
of  a  bona  fide  intent,  diligence  and  completion,  are  also  com- 
plied with.  It  is  well  settled  that  the  posting  of  a  notice  gives 
no  rights  if  the  other  requisites  are  not  complied  with.1 


D.     BENEFICIAL  PURPOSE. 
(3d  ed.) 

§  377.  Necessity  for  Bona  Fide  Intention. — There  must  be  an 
intention  to  use  the  water  for  a  beneficial  purpose.  This  was  a 
requisite  from  the  earliest  days,  for  all  appropriations,  however 


l  "The  right  to  the  water  does 
not  exist  when  the  notice  is  given 
and  it  may  never  vest.  The  most 
that  is  in  esse  is  a  right  to  acquire, 
by  reasonable  diligence,  a  future  right 
to  the  water."  Mitchell  v.  Canal 
Co.,  75  Cal.  482,  483,  17  Pac.  246. 

"The  amount  claimed  in  the  notice 
is  no  measure  of  the  right."  Duck- 
worth v.  Watsonville  etc.  Co.,  150  Cal. 
520,  89  Pac.  338. 

"Appropriation  is  a  much-abused 
word.  It  is  often  loosely  spoken  of 
as  the  preliminary  step — such  as  filing 
a  notice,  making  a  claim  to  the  water, 
or  the  like — but  in  its  legal  signifi- 
cance it  embodies  not  only  the  claim 
to  the  water,  but  the  consummation  of 
that  claim  by  actual  use."  Morris  v. 
Bean  (Mont.),  146  Fed.  425. 

"The  notice  of  Laird's  claim  was 

of  no  validity A  declaration 

of  a  claim  to  water,  unaccompanied 
by  acts  of  possession,  is  wholly  inop- 
erative as  against  those  who  shall 
legally  proceed  to  acquire  a  rig'-it  to 
the  same."  Columbia  Min.  v.  Holter, 
1  Mont.  296,  2  Morr.  Min.  Rep.  14. 

"My  intention  was  that,  knowing 
that  a  good  location  was  wanted  for 
a  smelter-sitej  to  hold  it  for  that 
purpose."  Having  from  1889  to  1902 
taken  no  steps  beyond  posting  a  no- 
tice, a  nonsuit  was  granted  against 
him  in  a  suit  by  him  against  one 
who  in  the  meantime  had  diverted  and 
used  the  water.  Miles  v.  Butte  etc. 
Co.,  32  Mont.  56,  79  Pac.  549. 

"The  filing  of  the  notice  of  ap- 
propriation did  not  alone  establish 


the  appropriation  nor  determine  either 
the  time  or  amount  thereof;  but  the 
necessity,  the  actual  diversion,  and 
the  use  were  all  essential  in  acquir- 
ing title  to  the  water  by  prior  appro- 
priation. If  these  existed,  title  to  it 
was  acquired  without  notice;  and,  if 
not,  the  notice  could  not  give  title. 
Notice  shows  prima  facie  an  inten- 
tion from  the  date  of  its  posting  to 
appropriate,  and,  if  followed  by  dili- 
gence in  the  construction  of  the  ditch 
and  diversion  of  the  water,  the  right 
will  date  from  the  time  of  giving  the 
notice."  Ison  v.  Sturgill  (Or.  1910), 
109  Pac.  579. 

That  notice  alone  is  not  enough  is 
held  in  the  cases  passim,  throughout 
the  subject.  The  following  additional 
specific  examples  are  cited:  Thomp- 
son v.  Lee,  8  Cal.  275,  1  Morr.  Min. 
Rep.  610;  Weaver  v.  Eureka  Lake 
Co.,  15  Cal.  271, 1  Morr.  Min.  Rep.  64; 
Nevada  etc.  Co.  v.  Kidd,  37  Cal.  282; 
Mitchell  v.  Amador  etc.  Co.,  75  Cal. 
464,  17  Pac.  246;  Cordoza  v.  Calkins, 
117  Cal.  106,  48  Pac.  1010,  18  Morr. 
Min.  Rep.  689 ;  De  Wolf  skill  v.  Smith, 
5  Cal.  App.  175,  89  Pac.  1001 ;  Conley 
v.  Dyer,  43  Colo.  22,  95  Pac.  304; 
Hilger  v. .  Sieben,  38  Mont.  93.  98 
Pac.  881;  Smyth  v.  Neal,  31  Or. '105, 
49  Pac.  850;  Patterson  v.  Ryan 
(Utah),  108  Pac.  1118;  Kendall  v. 
Joyce,  48  Wash.  489,  93  Pac.  1091; 
Miocene  D.  Co.  v.  Campion  D.  M.  Co., 
3  Alaska,  572 ;  Sullivan  v.  Jones 
(Ariz.),  108  Pac.  476,  O'Reilley  v. 
Noxon  (Colo.),  113  Pac.  486. 


§378  Ch.  17.     HOW  APPKOPRIATION   IS   MADE.      (3d  ed.)  407 

made.2  In  one  case  it  is  said:  "He  did  not  appropriate  in  a 
legal  sense  any  water  except  such  as  he  used  beneficially — turn- 
ing more  water  from  a  stream  than  he  used  was  waste,  not 
appropriation."3  In  another  case:  "If  the  proposed  appro- 
priator  is  not  able  to  complete  and  finally  establish  his  appro- 
priation by  applying  the  water  to,  and  using  it  for,  the  beneficial 
purpose  for  which  it  was  proposed  to  be  appropriated,  either 
by  himself  or  through  the  agency  of  some  user,  his  appropria- 
tion fails."4  In  another:  "The  intention  of  the  claimant  is 
therefore  a  most  important  factor  in  determining  the  validity 
of  an  appropriation  of  water. ' ' 5  The  intention  must  be  bona  fide 
and  not  for  speculation,  such  as  an  intention  to  store  water  for 
monopoly,6  or  for  irrigation  of  one's  own  land  when  one  has 
no  lands  to  be  irrigated,7  but,  as  appropriation  may  be  made 
for  use  on  other  lands  than  one's  own,  it  is  not  necessary  to 
have  any  irrigable  land  when  the  intention  is  in  good  faith  to 
supply  water  to  others.8 

(3d  ed.) 

§  378.  What  Constitutes  a  Beneficial  Purpose. — What  con- 
stitutes a  beneficial  purpose  will  best  be  seen  from  examples.9 

A  passive  acceptance  of  water  as  it  flows  into  one's  ditch 
when  another  appropriator  does  not  wish  to  use  it  is  not  an 
appropriation  if  not  taken  into  the  ditch  with  any  intent  to  a 
use  at  all.10 

2  See  Pomeroy  on  Riparian  Rights,          5  Power  v.  Switzer,  21  Mont.  523, 
sec.  47.     Citing  Dick  v.  Caldwell,  14       55  Pac.  32. 

Nev.  167;  Dick  v.  Bird,  14  Nev.  161;  6  Weaver    T.    Eureka    Co.,    15    Cal. 

Crane  v.  Winsor,  2  Utah,  248,  11  Morr.  271,  1  Morr.  Min.  Rep.  642.     But  it 

Min.  Rep.  69 ;  Munroe  v.  Ivie,  2  Utah,  has  been  held  that  an  allegation  in  a 

535,  8  Morr.  Min.  Rep.  127 ;  Woolman  complaint  that  defendant's  claim  was 

v.  Garringer,   1  Mont.   535,   11  Morr.  for  speculative  purposes  is  a  conclu- 

Min.   Rep.   675 ;    Cal.   Civ.   Code,   sec.  sion  of  law,  and  insufficient  pleading 

1411.  without  a   statement   of  the   evidence 

See,  also,  North  Am.  Co.  v.  Adams  to  sustain  it.     Sternberger  v.  Seaton 

(Colo.),   104   Fed.   404,   45   C.   C.   A.  etc.  Co.  (1909),  45  Colo.  401,  102  Pac. 

185,  21  Morr.  Min.  Rep.  65;  Nevada  168,  sed  qu. 

D.  Co.  v.  Bennett,  30  Or.  59,  60  Am.  ?  Miles  v.  Butte  etc.  Co.,  32  Mont. 

St.  Rep.  777,  45  Pac.  472 ;   Smith  v.  56,  79  Pac.  549. 

Duff,  39  Mont.  382,  133  Am.  St.  Rep.  8  Hough  v.  Porter,  51  Or.  318,  95 

587,   102   Pac.   984;    Snyder  v.   Colo-  Pac.  732,  98  Pac.  1083,  102  Pac.  728. 

rado   etc.   Co.    (Colo.   C.   C.   A.),   181  Cf.  supra,  sec.  281  and  infra,  sec.  395. 

Fed.   62 ;   Cascade  Co.  v.  Empire  Co.  9  For   an   interesting   discussion  of 

(Colo.).  181  Fed.  1011.  the  point,  see  Cascade  Co.  v.  Empire 

^  n      n    IA  TVT       i«7  Co-  (Colo.),  181  Fed.  1011. 

3  Dick  v.  Caldwell,  14  Nev.  167.  10  Smith  Co.  v.   Colorado   etc.  Co, 

4  Sowards  v.  Meagher  (Utah,  1910),       34  Colo.  485,  82  Pac.  940,  3  L.  R.  A., 
108  Pac.  1113.  N.  S.,  1148. 


408  (3d  ed.)       Pt.  in.     THE  LAW  OF  PKIOR  APPKOPEIATION.       §  378 

A  ditch  for  drainage  does  not  appropriate  the  water  in  it, 
because  of  the  absence  of  intent  to  use  the  water.11  Where 
water  draining  from  a  tunnel  finds  its  way  to  a  stream,  the 
tunnel  owner  cannot  claim  as  an  appropriator  the  right  to 
reclaim  the  water  from  another  part  of  the  stream.12  Where 
water  drains  from  an  abandoned  well  drilled  for  oil,  the  driller 
of  the  well  is  not  an  appropriator  of  the  water,  from  lack  of 
intent  to  use  the  water  at  the  time  the  well  was  abandoned.13 
But  the  drainage  may  be  only  incidental  to  a  beneficial  use, 
or  there  may  be  a  dual  intent.  "There  was  some  testimony 
indicating  a  dual  intent  on  the  part  of  Duncan — that  is,  a  pur- 
pose not  only  to  get  water  to  irrigate  his  land,  as  stated,  but 
also  to  draw  off  the  flood  water  from,  and  prevent  it  flowing 
to,  some  other  land  owned  by  him  on  which  he  then  had  grow- 
ing a  crop  of  grain.  This  purpose  to  drain  one  tract  of  land 
did  not  vitiate  or  destroy  the  right  to  take  the  water  for  irri- 
gation of  other  tracts,  nor  impair  the  right,  acquired  by  such 
appropriation  and  use,  to  take  and  use  it  for  the  latter  purpose. 
The  two  purposes  are  not  inconsistent."14 

When  making  no  application  of  water,  quaere  whether  flowing 
it  through  a  ditch  to  flush  it  and  keep  it  open  is  beneficial  use.15 

Irrigation  is  a  useful  purpose,  and  water  may,  of  course,  be 
appropriated  for  irrigation.16  What  is  contemplated  by  the  term 

11  Eddy  v.  Simpson,  3  Cal.  249,  58  Semi- Tropic  Co.,  64  Cal.  185,  30  Pac. 
Am.    Dec.    408,    15    Morr.    Min.    Rep.  623;  Lux  v.  Haggin,  69  Cal.  255,  10 
175;   Maoris  v.   Bicknell,   7   Cal.   261,  Pac.  674;   Yunker  v.  Nichols,  1  Colo. 
68  Am.  Dec.  257,  1  Morr.  Min.  Kep.  551,  8  Morr.  Min.  Rep.  64;   Schilling 
601.  v.   Rominger,  4  Colo.   100;    Sieber  v. 

12  Farmers'  etc.  Co.  v.  Rio  Grande  Frink,  7  Colo.  148,  2  Pac.  901;  Lari- 
etc.  Co.,  37  Colo.  512,  86  Pac.  1042;  mer  Co.  Res.   Co.  v.  People,  8  Colo. 
supra,  see.  38  et  seq.,  "Recapture."  614,   9   Pac.    794;    Platte   Water   Co. 

13  De    Wolfskill   v.    Smith,    5    Cal.  v.   Northern   Colo.   Irr.   Co.,   12   Colo. 
App.  175,  89  Pae.  1001.  525,  21  Pac.  711 ;  Farmers'  etc.  Co.  v. 

14  Lower   Tule   etc.   Co.  v.  Angiola  Southworth,    13    Colo.    Ill,    21    Pac. 
etc.  Co.,  149  Cal.  496,  86  Pac.  1081.  1028,  4  L.  R.  A.  767 ;  Geertson  v.  Bar- 

15  Mann  v.  Parker,  48  Or.  321,  86  rack,  3  Idaho,  344,  29  Pac.  42;  Kirk 
Pac.  598.     Cf.  Weaver  v.  Conger,  10  v.  Bartholomew,  3  Idaho,  367,  29  Pac. 
Cal.  233,  6  Morr.  Min.  Rep.  203.  40;   Pyke  v.  Burnside,  8   Idaho,  487, 

Regarding  appropriations   in   Wyo-  69  Pac.  477;  Thorp  v.  Freed,  1  Mont, 

ming  for  floating  logs,  see  Wyo.  Stats.  651;    Murray    v.    Tingley,    20    Mont. 

1903,  c.  16,  sec.  1.  260,  50  Pac.  723;   Sayre  v.  Johnson, 

16  Basey    v.    Gallagher,    87    U.    S.  33  Mont.  15,  81  Pac.  389;  Barnes  v. 
670,  22  L.  Ed.  452,  1  Morr.  Min.  Rep.  Sabron,    10   Nev.    231,   4   Morr.    Min. 
683;    Rupley   v.  Welch,   23    Cal.   453,  Rep.  673;  Dick  v.  Bird,  14  Nev.  161; 
4  Morr.  Min.  Rep.  243   (approved  in  Dick  v.  Caldwell,  14  Nev.  167;  Nevada 
Natoma  etc.  v.  Hancock,  101  Cal.  42,  etc.  Co.  v.  Bennett,  30  Or.  59,  60  Am. 
31   Pac.   112,  35   Pac.   334);    Cave  v.  St.  Rep.  777.  45  Pac.  472;  Brown  v. 
Crafts,  53  Cal.  135;  Anaheim  etc.  v.  Baker,   39   Or.    66,    65   Pac.    799,   66 


§378  Ch.  17.     HOW  APPROPRIATION   IS   MADE.      (3d  ed.)  409 

"irrigation"  appears  from  the  following:  Water  increasing  the 
growth  of  grass  for  pasturage  is  a  beneficial  purpose  if  turned 
on  the  land  with  that  intent ; 17  and  the  water  thus  used  may  be 
claimed  in  addition  to  that  used  for  crops  and  grain ; 18  but  it  is 
otherwise  where  the  increase  in  growth  of  hay  was  merely  inci- 
dental, and  irrigation  had  not  been  intended,19  or  where  there  was 
but  a  purposeless  flooding  of  land.20  Cutting  wild  grass  pro- 
duced by  the  overflow  of  a  river,  that  is,  by  the  water  of  a  river 
coming  down  and  spreading  over  the  land,  is  not  an  appropria- 
tion of  that  water  within  the  meaning  of  that  term.21 

Culinary  use  and  watering  horse  by  a  settler,  being  intended 
permanent,  is  a  beneficial  use,  but  use  by  driving  sheep  or  cattle 
to  a  spring  sporadically  and  intermittently  is  not  an  appropria- 
tion, being  too  uncertain,  and  not  intended  as  an  appropriation.22 
Appropriations  may  be  made  for  domestic  use.23 

The  following  is  an  extreme  case:  "The  ground  assumed  is  that 
the  diversion  of  water  for  the  mere  temporary  purpose  of  strand- 
ing fish  is  not  converting  it  to  a  useful  or  profitable  purpose,  and 
therefore  the  party  thus  diverting  it  acquires  no  rights.  Had  the 
water  been  diverted  by  the  Indians  for  the  mere  purpose  of  catch- 
ing fish  upon  one  occasion,  this  position  might  have  been  right. 
But,  as  I  understand  the  testimony,  it  was  a  permanent  diversion 
of  the  water,  so  as  to  run  it  over  flat  meadows,  thus  enabling  the 
Indians  at  any  time  to  catch  fish  among  the  grass  of  the  meadow- 
land,  which  they  could  not  catch  while  the  waters  were  confined 
in  a  narrow  channel.  I  cannot  see  but  that  it  is  just  as  legitimate 
for  an  Indian  to  turn  water  over  meadow-land  to  enable  him  to 

Pac.  193 ;  Lone  Tree  Co.  v.  Eapid  City  21  Walsh  v.  Wallace,  26  Nev.  299, 

Co.,    16    S.   D.   451,    93    N.   W.    650;  99  Am.  St.  Rep.  692,  67  Pac.  914. 

Crane    v.    Winsor,    2    Utah,    248,    11  22  Patterson  v.  Eyan  (Utah,  1910), 

Morr.  Min.  Rep.  69;   Munroe  v.  Ivie,  108  Pae.  1118. 

2  Utah,  535,  8  Morr.  Min.  Rep.  127;  23  As  defined  in   Idaho    (McLean's 

Hough  v.  Porter,  51  Or.  318,  95  Pac.  Rev.  Codes,  sec.   3250)  :    "The  phrase 

732,  98  Pac.  1083,  102  Pac.  728.  'domestic    purposes'    as    contained    in 

n  Sayre  v.  Johnson,   33  Mont.   15,  this    title    shall    be   construed    to    in- 

81  Pac.  389;   Smyth  v.  Neal,  31  Or.  elude  water  for  the  household,  and  a 

105,  109,  49  Pac.  850;   Kleinschmidt  sufficient  amount  for  the  use  of  do- 

v.  Gneiser,  14  Mont.  484,  497,  43  Am.  mestic  animals  kept  with  and  for  the 

St.  Rep.  652,  37  Pac.  5,  6;   Rodgers  use  of  the  household."     See  infra,  sec. 

v.  Pitt,  129  Fed.  932.     Or  the  growth  740,  for  definition  of  "domestic  use." 

of  hay.     Pyke  v.   Burnside,  8   Idaho,  Regarding  stock-watering  purposes, 

487,  69  Pac.  477.  there   is  a   Federal   statute   granting 

18  Rodgers   v.   Pitt,    129   Fed.    932.  lands  for  reservoir  purposes  upon  fil- 

19  Power  v.  Switzer,  21  Mont.  523,  ing  maps  with  the   Secretary   of  the 
55  Pac.  32.  Interior.     A.    C.    Jan.    13,    1897,    29 

20  Millheiser    V.    Long,    10    N.    M.  Stats,  at  Large,  484.     See  infra,  sec. 
99,  61  Pac.  111.  433. 


410  (3d  ed.)       Pt.  III.     THE  LAW  OF  PRIOR  APPROPRIATION.       §  378 


catch  fish  for  his  subsistence  as  for  a  white  man  to  turn  it  over  the 
same  land  to  increase  the  growth  of  grass. "  24  It  has,  however, 
more  lately  been  held  that  water  may  not  be  appropriated  to  fill 
a  series  of  small  reservoirs  or  lakes  in  which  to  propagate  fish.25 
Another  extreme  holding  is  that  building  a  summer  hotel  is  an 
appropriation  of  a  near-by  waterfall  which  lends  beauty  to  the 
resort.1 

Storage  as  an  aid  to  irrigation  or  other  use  (as  opposed  to  specu- 
lation) is  a  useful  purpose,  and  water  may  be  appropriated  for 
storage.2  Articles  of  incorporation  to  divert  water  do  not  include 
building  of  reservoirs  to  store  it.3 

Mining  and  power  are  useful  purposes  for  which  appropriation 
may  be  made.4  Prospecting  a  placer  claim,  though  it  yields  no 
profit,  is  a  beneficial  use.5  Sale  or  public  supply  likewise.6  The 
original  case  of  Irwin  v.  Phillips7  was  such  a  case.  Manufacture 
and  generation  of  light,  heat,  power  or  electricity  is  beneficial 
use,  for  which  an  appropriation  can  be  made.8 

But  mere  speculation  is  not  allowed;  e.  g.,  a  reservoir  built  to 
hold  water  indefinitely,  without  any  definite  use  in  mind,9  or  for 


24  Lobdell  v.  Hall,  3  Nev.  507. 

25  Windsor   Res.   Co.   v.  Lake   Sup- 
ply Co.,  44  Colo.  214,  98  Pac.  729. 

1  Cascade  Co.  v.  Empire  Co.  (Colo.), 
181  Fed.  1011. 

2  Water  Supply  Co.  v.  Larimer  Irr. 
Co.,  24  Colo.  322,  51  Pae.  496,  46  L. 
R.   A.   322;    Cache  La  Poudre  Co.  v. 
Windsor    Co.,    25    Colo.    53,    52    Pac. 
1104;  Windsor  Res.  Co.  v.  Lake  Sup- 
ply Co.,  44  Colo.   214,  98   Pae.    729. 
See  17  L.  R.  A.,  N.  S.,  329,  note. 

3  Seeley  v.  Hunting  etc.   Assn.,  27 
Utah,  179,  75  Pac.  367. 

4  Irwin  v.  Phillips,  5  Gal.   140,  63 
Am.    Dec.    113,    15    Morr.    Min.    Rep. 
178;  McDonald  v.  Bear  River  Co.,  13 
Cal.  220,  1  Morr.  Min.   Rep.   626,  15 
Cal.    145,    1    Morr.    Min.    Rep.    639; 
Platte   Water   Co.   v.   Northern    Colo. 
Irr.  Co.,   12   Colo.  525,  21   Pac.   711; 
Woolman  v.  Garringer,   1  Mont.   535, 
1  Morr.   Min.   Rep.  675. 

5  Madigan  v.  Kpugarok  M.  Co.,  3 
Alaska,  63. 

6  Wilterding  v.  Green,  4  Idaho,  773, 
45  Pac.  134;   Albuquerque  etc.  Co.  v. 
Guitterez,  10  N.  M.  177,  61  Pac.  357 ; 
Gutierres  v.  Albuquerque  etc.  Co.,  188 
U.  S.  545,  23   Sup.   Ct.  Rep.  338,  47 
L.   Ed.   588;    Salt  Lake   City  v.   Salt 


Lake  etc.  Co.,  24  Utah,  249,  67  Pac. 
672,  61  L.  R.  A.  648;  Platte  Water 
Co.  v.  Northern  Colo.  Irr.  Co.,  12  Colo. 
525,  21  Pac.  711;  Lone  Tree  D.  Co. 
v.  Rapid  City  etc.  Co.,  16  S.  D.  451, 
93  N.  W.  650;  Strickler  v.  Colorado 
Springs,  16  Colo.  61,  25  Am.  St.  Rep. 
245,  26  Pac.  313;  Yuba  Co.  v.  Cloke, 
79  Cal.  239,  21«Pac.  740;  Senior  v. 
Anderson,  130  Cal.  290,  at  297,  62 
Pac.  563;  Souther  v.  San  Diego  etc., 
112  Fed.  228;  Cal.  Const.,  art.  14,  sec. 
1.  See  note  in  60  Am.  St.  Rep.  804, 
816.  Regarding  public  service,  see 
infra,  sec.  1245  et  seq. 

7  5  Cal.   140,  63  Am.  Dec.  113,  15 
Morr.  Min.  Rep.  178. 

8  Speer  v.   Stephenson    (1909),   16 
Idaho,  707,  102  Pac.  365;  Sternberger 
v.   Sea  ton   etc.    Co.    (1909),   45   Colo. 
401,  102  Pac.  168;  Thompson  v.  Pen- 
nebaker    (Wash.),    173    Fed.    849,    97 

C.  C.  A.  591;   Cascade  Co.  v.  Empire 
Co.     (Colo.),    181    Fed.    1011;    Neb. 
Stats.    1893,   c.   40,   p.   378,   Cobbey's 
Ann.  Stats.,  sec.  6754.    But  see  Shodde 
v.  Twin  Falls  Co.,  supra,  sec.  313. 

9  Weaver  v.  Eureka  etc.  Co.,  15  Cal. 
271,  1  Morr.  Min.  Rep.  642;   Miocene 

D.  Co.  v.  Campion  M.  Co.,  3  Alaska, 
572. 


§379  Ch.  17.     HOW  APPROPRIATION   IS  MADE.      (3ded.)  411 

monopoly.10  An  appropriation  can  be  made  for  a  purpose  con- 
templated in  the  future,  such  as  the  irrigation  of  land  to  be 
later  acquired,  if  there  will  be  no>  unreasonable  delay,  and 
speculation  is  not  intended.11 

Regarding  appropriations  for  storage  under  Colorado  statutes, 
the  Colorado  constitution  allows  an  appropriation  either  by  means 
of  a  ditch  or  canal  for  immediate  irrigation,  or  by  a  reservoir 
for  storage  of  whatever  flow  is  diverted  or  stored  for  future 
beneficial  use,  but  an  appropriation  for  storage  includes  only  one 
filling  of  the  reservoir  each  season  unless  expressly  intended  and 
initiated  for  several  fillings.  In  the  absence  of  an  express  appro- 
priation for  more  than  one  filling,  only  a  priority  for .  a  single 
filling  can  be  awarded  to  such  appropriation ;  and  a  subsequent 
appropriator  may  build  another  reservoir  to  store  the  surplus  over 
the  one  filling  of  the  prior  reservoir.12 

That  all  pursuits  are  on  an  equal  footing,  whether  miners, 
agriculturists,  manufacturers,  or  other  occupations,  is  a  matter 
previously  set  forth.  The  law  here  again  follows  out  the  idea 
of  "free  development"  upon  which  it  is  founded.  The  follow- 
ing passage  from  Basey  v.  Gallagher13  is  frequently  quoted: 
"Water  is  diverted  to  propel  machinery  in  flourmills,  and  saw- 
mills, and  to  irrigate  land  for  cultivation,  as  well  as  to  enable 
miners  to  work  their  mining  claims,  and  in  all  such  cases  the  right 
of  the  first  appropriator,  exercised  within  reasonable  limits,  is 
respected  and  enforced."  An  appropriation  may  be  made  for 
any  beneficial  purpose.14 

(3d  ed.) 

§  379.    Motive. — Malice   and  ill-will  toward   another   do  not 

enter  into  the  question.15  It  is  usually  said  that  an  act  other- 
wise lawful  does  not  become  unlawful  merely  through  a  malicious 
motive  to  injure  another.  The  question  is  more  or  less  an  open 
one,  however,  under  the  new  decisions  concerning  underground 
water  and  in  that  connection  will  be  discussed  later. 

10  Revenue  etc.   Co.  v.  Balderston,  14  Thompson  v.  Pennebaker  (Wash.), 
2  Alaska,  363.  173  Fed.  849,  97  C.  C.  A.  591;  Silver 

11  Sowards     v.      Meagher      (Utah,  Peak  Mines  v.  Valcalda,  79  Fed.  886. 
1910),  108  Pac.  1113.     See  infra,  sec.  15  Correa  v.  Frietas,  42  Cal.  339,  2 
483,  future  needs.  Morr.  Min.  Rep.  336;-  Stone  v.  Bum- 
fa  Windsor  Res.  Co.  v.  Lake  Supply  pus,  46  Cal.  218,  4  Morr.   Min.  Rep. 

Co.,  44  Colo.  214,  98  Pac.  729.  278;  Fisher  v.  Feige,  137  Cal.  39,  92 

13  87  U.  S.  670,  22  L.  Ed.   452,  1  Am.  St.  Rep.  77,  69  Pac.  618,  59  L. 

Morr.    Min.    Rep.    683     (per    Justice  R.  A.  333. 
Stephen  Field). 


412  (3d  ed.)       Pt.  in.     THE  LAW  OF  PRIOR  APPROPRIATION.       §  382 
(3d  ed.) 

§  380.  Evidence  of  Intention. — How  is  the  intention  shown? 
First,  of  course,  from  the  notice;  but  it  may  be  drawn  also  from 
the  appropriator's  acts,  the  manner  in  which  they  work,  the  gen- 
eral size  of  the  ditch,  etc.16  They  aid  in  interpreting  the 
notice.  "But  as  every  appropriation  must  be  for  a  beneficial  or 
useful  purpose,  it  becomes  the  duty  of  the  courts  to  try  the  ques- 
tion of  the  claimant's  intent  by  his  acts,  and  the  circumstances 
surrounding  his  possession  of  the  water,  its  actual  or  contemplated 
use,  and  the  purpose  thereof."17 

Where  the  appropriation  is  by  actual  diversion  without  notice, 
such  evidence  of  surrounding  circumstances  is  the  sole  evidence 
of  the  intent  that  is  possible.18 

(3d  ed.) 

§  381.    Intention    Alone    not    Enough. — It    need    hardly    be 

repeated  that  the  intent  alone  by  itself,  is  not  enough;  the  other 
requisites  we  are  considering  must  also  be  complied  with.19  A 
design  two  years  before  to  appropriate  a  certain  creek  as  a  con- 
necting link  in  a  long  canal  was  held20  not  to  prevent  another 
man  from  coming  in  the  meantime  and  building  a  dam.  In 
extensive  operations  of  this  kind,  involving  several  streams,  each, 
it  appears,  must  be  separately  appropriated.  The  same  has  been 
held  of  the  intention  to  build  a  reservoir  in  a  river-bed.21 

E.     DILIGENCE. 
(3d  ed.) 

§  382.  Necessity  for  Diligence. — There  must  be  diligence  in 
prosecuting  the  construction  work.  This  was  a  requisite  from  the 
earliest  days  for  all  appropriators  claiming  the  benefit  of  the 
doctrine  of  relation,  and  remains  to  the  present  day  wherever  the 
law  of  appropriation  is  in  force.22 

36  White  v.  Todd's  etc.  Co.,  8.  Cal.  of  the   ditch   proprietors   upon  which 

443,   68  Am.  Dec.  338,  4  Morr.  Min.  it  could  reasonably  be  supposed  that 

Rep.  536.  they   intended   to   apply   it."     Taugh- 

17  Toohey  v.  Campbell,  24  Mont.  13,  enbaugh  v.   Clark,  6   Colo.  App.   235, 
60  Pac.  396.  40  Pac.  153. 

18  "Such    intention,     unless    estab-  19  Ortman  v.  Dixon,  13  Cal.  33. 
lished    by    notice,    or   in    some    other  20  Kelly  v.  Natoma  etc.  Co.,  6  Cal. 
public   manner,   could   in   no   way   be  105,  1  Morr.  Min.  Eep.  592. 

known  to  or  control  others  wishing  to  21  New  Loveland  etc.  Co.  v.  Con- 
take  water  from  the  same  stream,  and  solidated  etc.  Co.,  27  Colo.  526,  62 
such  intention  could  only  be  inferred  Pac.  366,  52  L.  R.  A.  26S. 
or  deduced,  first,  from  the  capacity  of  22  Cal.  Civ.  Code,  sec.  1416,  and 
the  ditch  at  its  head,  and  perhaps,  cases  herein  cited  below.  Also  High- 
second,  the  amount  of  irrigable  land  land  D.  Co.  v.  Mumford,  5  Colo.  325, 


§383 


Ch.  17.     HOW  APPROPRIATION  IS  MADE.      (3d  ed.)  413 


(3d  ed.) 

§  383.  What  Constitutes  Diligence. — The  California  code  has 
specified  that  the  work  must  commence  within  sixty  days  after 
posting  of  notice,  and  must  continue  thence  diligently  and 
uninterruptedly  unless  prevented  by  rain  or  snow.23 

Upon  the  point  of  delay  because  of  pecuniary  inability  the 
decisions  seem  to  conflict.  In  California,24  Nevada 25  and  Ore- 


2  Morr.  Min.  Rep.  3;  Sieber  v.  Frink, 
7  Colo.  148,  2  Pac.  901;  Farmers' 
Highline  C.  &  Res.  Co.  v.  Southworth, 
13  Colo.  Ill,  21  Pac.  1028,  4  L.  R.  A. 
767;  Colo.  Land  &  W.  Co.  v.  Rocky 
Ford  C.  R.  L,  L.  &  T.  Co.,  3  Colo. 
App.  545,  34  Pac.  580;  Beaver  Brook 
Res.  &  C.  Co.  v.  St.  Vrain  Res.  &  Fish 
Co.,  6  Colo.  App.  130,  40  Pac.  1066; 
Taughenbaugh  v.  Clark,  6  Colo.  App. 
235,  40  Pac.  153;  3  M.  A.  S.,  1905 
ed.,  2265f;  Gates  v.  Settlers'  Co.,  19 
Okl.  83,  91  Pac.  856;  Rodgers  v.  Pitt, 
129  Fed.  932;  Kelly  v.  Hynes 
(Mont.),  108  Pac.  785;  Avery  v.  John- 
son (Wash.),  109  Pac.  1028. 

See  the  California  Statute  of  1911, 
chapter  406,  section  4,  reading:  ''All 
water  or  the  use  of  water  which  has 
been  heretofore  appropriated  and 
which  has  not  been  put,  or  which  has 
ceased  to  be  put  to  some  useful  or  bene- 
ficial purpose,  or  which  is  not  now  in 
process  of  being  put  to  some  useful  or 
beneficial  purpose  with  due  diligence 
in  proportion  to  the  magnitude  of  the 
work  necessary  properly  to  utilize  for 
the  purpose  of  such  appropriation 
such  water  or  such  use  of  water,  is 
hereby  declared  to  be  unappropriated." 

After  reviewing  certain  authorities, 
an  early  case  says:  "The  principles 
established  in  the  cases  cited  are 
founded  in  reason.  The  doctrine  is 
that  no  man  shall  act  upon  the  prin- 
ciple of  the  dog  in  the  manger,  by 
claiming  water  by  certain  preliminary 
acts,  and  from  that  moment  prevent 
others  from  enjoying  that  which  he  is 
himself  unable  or  unwilling  to  enjoy, 
and  thereby  prevent  the  development 
of  the  resources  of  the  country  by 
others.  Anybody  else  may  divert  and 
use  all  the  water,  be  it  more  or  less, 
that  a  prior  claimant  is  not  in  a 
present  condition  to  use,  and  by  lack 
of  diligence  on  his  part  in  pursuing 
and  perfecting  a  prior  inchoate  right, 
may  acquire  rights  even  superior  to 
his."  Nevada  C.  &  S.  C..Co.  v.  Kidd, 
37  Cal.  282,  at  314. 


23  Civ.  Code,  sec.  1416.    As  amended 
in  1911  (Stats.,  c.  730),  it  further  pro- 
vides that  the  sixty  days,  on  mining 
debris   projects,   shall  run  only   from 
completion   of   the    dam   required    by 
the  Debris  Commission;  and  on  muni- 
cipal    water     projects,     issuance     of 
bonds  within  sixty  days  shall  be  equiv- 
alent to  beginning  work.     Quoted  in- 
fra,  sec.    1432.     See,    also,   the    1911 
Water   Power    Act    of    California,    in 
the  next  chapter,  section  422. 

In  Kansas  (Gen.  Stats.  1901,  sec. 
3501  et  seq.)  work  must  commence 
within  sixty  days  and  be  prosecuted 
diligently. 

In  Montana  (Stats.  1907,  p.  489)  : 
"The  work  in  the  construction  and 
completion  of  the  means  of  divert- 
ing and  conveying  water  to  place  of 
use,  shall  be  prosecuted  with  reason- 
able diligence,  otherwise  no  rights 
shall  be  acquired  by  such  appropri- 
ator." 

In  Oregon,  for  power  appropria- 
tions, it  is  provided  that,  in  deciding 
the  question  of  diligence  there  shall 
be  considered  "the  cost  of  the  ap- 
propriation and  application  of  such 
water  to  a  beneficial  purpose,  the  good 
faith  of  the  appropriator,  the  market 
for  water  or  power  to  be  supplied, 
the  present  demands  therefor,  and  the 
income  or  use  that  may  be  required  to 
provide  fair  and  reasonable  returns 
upon  the  investment."  Or.  Stats. 
1909,  c.  216,  sec.  70,  subd.  6. 

In  Washington  (Pierce's  Code  1905, 
see.  5133),  purpose  being  storage, 
work  must  be  commenced  within  three 
months  after  posting  notice  of  appro- 
priation; if  diversion,  six  months. 
Must  be  diligently  prosecuted. 

24  Nevada  etc.  Co.  v.  Kidd,  37  Cal. 
282;  Kimball  v.  Gearhart,  12  Cal.  27, 
1  Morr.  Min.  Rep.  615. 

25  Ophir   etc.    Co.   v.    Carpenter,   4 
Nev.  534,  97  Am.  Dec.  550,  4  Morr. 
Min.  Rep.  640. 


414  (3d  ed.)       Pt.  HI.     THE  LAW  OF  PRIOR  APPROPRIATION.       §  383 

gon l  lack  of  funds  will  not  excuse  delay ;  but  it  seems  other- 
wise in  Colorado2  and  Idaho.3  In  these  latter  cases  the  courts 
lay  stress  upon  the  fact  that  the  public  lands  have  usually  been 
taken  up  by  poor  men.  In  the  Colorado  case  it  is  said:  "Men  of 
limited  means,  pioneers  in  a  new  territory,  who  have  not  only 
to  'grub'  and  clear  land,  but  erect  houses  and  provide  means  of 
living  while  making  a  home,  should  not  be  held  to  the  same  rule 
with  those  more  favored  and  having  abundant  capital.  As  long 
as  the  settler  in  the  desert  does  not  abandon,  but  continues  in  good 
faith  to  prosecute  his  construction  of  a  ditch  and  the  application 
of  water  to  his  land  as  rapidly  as  his  means  will  permit,  he  should 
be  held  to  be  within  the  limit  of  '  a  reasonable  time. '  ' ' 
Interruptions  by  sickness  are  not  an  excuse  for  delay.4 
If  a  ditch  breaks  before  the  water  reaches  the  land  intended  to 
be  irrigated  by  it,  the  delay  is  not  necessarily  lack  of  diligence; 
it  is  open  to  explanation.5  The  fact  that  another  began  later 
than  you  and  finished  sooner  is  evidence  of  lack  of  diligence  on 
your  part,6  but  is  not  conclusive.7 

What  constitutes  diligence  must  be  determined  on  the  facts  of 
each  case.  It  is  a  question  of  fact  for  the  jury.8  In  an  early  case  9 
the  court  says  that  the  following  statements,  among  others,  are 
an  accurate  statement  of  the  law:  "In  appropriating  unclaimed 
water  on  public  lands  only  such  acts  are  necessary,  and  only  such 

1  Cole   v.    Logan,    24   Or.    304,    33       ley  v.  Dyer,  43  Colo.  22,  95  Pac.  304; 
Pac.  568.  McFarland    v.     Alaska    etc.    Co.,     3 

2  Taughenbaugh   v.    Clark,   6   Colo.       Alaska,  308. 

App.  235,  40  Pac.  153.  "What  shall  constitute  such  reason- 

3  Hall  v.  Blackman,  8   Idaho,  272,  afcie   tjme   is  a   question   of   fact   de- 
68  Pac.  19;  Conant  v.  Jones,  3  Idaho,  pending  upon  the  circumstances  con- 
606,     32     Pac.     250.     See,     however,  nected    with    each    particular    case." 
United  States  v.  Whitney  (Idaho),  176  Sieber  v.  Frink,  7  Colo.  148,  2  Pac. 
Fed.    593,    difficulty    of    financing    a  991, 

large  project  no  excuse  «,Ag  t     what  constitutes  reasonable 

,   tr         £•    \        w 'M       1       t  '  diligence  must  be  governed  by  the  cir- 

1  Morr    Mm    Rep    615;   Nevada  etc.  cunfstances    of    ea*h      articijar    case> 

Co.  v    Kidd,  37  Cal    282;  Mitchell  v.  and  necessari]     Tariegi^th  each     ar.' 

Amador  Canal  etc.  Co,  75   Cal.   464,  ticu]ar  ^     ^  .g  &  question  Qf  ££ 

_  w%,  TT-  iiT    n  i        and  must  be  determined  from  all  the 

»9o  Tadl£  V'    Kreyenhagen>    117    CaL       evidence  in  the  case."     Gates  v.   Set- 

«'XT       iaC'  *     n  VAA    a?  Pol  tlers'  c°;  19  Okl-  83>  91  Pac.  856. 

«  Nevada  etc.  Co.  v.  Kidd,  37  Cal. 
2g2  Evidence    of    diligence    considered. 

7-De   Necochea   v.   Curtis,    80    Cal.  Thorndyke  v    Alaska  etc    Co.    (C.  C 

397,  20  Pac.  563,  22  Pac.  198;  Wells  A.,  Alaska,   1908),   164  Fed.   657,  90 

v.  K^enhagen,  117  Cal.  329,  49  Pa,  ^fi^***}""^  f£«™ 

8  Weaver  v.  Eureka  etc.  Co.,  15  9  Kimball  v.  Gearhart,  12  Cal.  27, 
Cal.  271,  1  Morr.  Min.  Rep.  642 ;  Con-  1  Morr.  Min.  Rep.  615. 


§383  Ch.  17.     HOW  APPROPRIATION   IS   MADE.      (3d  ed.)  415 

indications  and  evidences  of  appropriation  are  required  as  the 
nature  of  the  case  and  the  face  of  the  country  will  admit  of  and 
are  under  the  circumstances  and  at  the  time  practicable;  and 
surveys,  notice,  stakes  and  blazing  of  trees,  followed  by  work  and 
actual  labor  without  any  abandonment,  will  in  every  case  where 
the  work  is  completed,  give  title  to  water  over  subsequent  claim- 
ants." "In  determining  the  question  of  the  plaintiffs'  diligence 
in  the  construction  of  their  ditch,  the  jury  have  a  right  to  take 
into  consideration  the  circumstances  surrounding  them  at  the 
date  of  their  alleged  appropriation,  such  as  the  nature  and  climate 
of  the  country  traversed  by  said  ditch,  together  with  all  the  diffi- 
culties of  procuring  labor  and  materials  necessary  in  such  cases." 

Diligence  does  not  require  unusual  or  extraordinary  efforts,  but 
only  such  constancy  and  steadiness  of  purpose  or  of  labor  as  is 
usual  with  men  engaged  in  like  enterprises.  Matters  incident  to 
the  person  and  not  to  the  enterprise  are  not  such  circumstances  as 
will  excuse  great  delay  in  the  work.10  In  one  case,  for  two  years 
work  was  done  on  the  ditch  for  three  months  only,  and  the  court 
said:  "Diligence  is  defined  to  be  the  'steady  application  to  busi- 
ness of  any  kind,  constant  effort  to  accomplish  any  undertaking.' 
The  law  does  not  require  any  unusual  or  extraordinary  effort,  but 
only  that  which  is  usual,  ordinary,  and  reasonable.  The  diligence 
required  in  cases  of  this  kind  is  that  constancy  and  steadiness  of 
purpose  or  labor  which  is  usual  with  men  engaged  in  like  enter- 
prises, avnd  who  desire  a  speedy  accomplishment  of  their  designs. 
Such  assiduity  in  the  prosecution  of  the  enterprise  as  will  mani- 
fest to  the  world  a  bona  fide  intention  to  complete  it  within  a 
reasonable  time.  It  is  the  doing  of  an  act,  or  series  of  acts,  with 
all  practical  expedition,  with  no  delay,  except  such  as  may  be. 

incident  to  the  work Rose  during  this  time  may  have 

dreamed  of  his  canal  completed,  seen  it  with  his  mind's  eye  yield- 
ing him  a  great  revenue ;  he  may  have  indulged  the  hope  of  provi- 
dential interference  in  his  favor,  but  this  cannot  be  called  a 
diligent  prosecution  of  his  enterprise."11 

On  the  facts  involved,  there  was  held  to  be  diligence  in  the  con- 
struction work  in  the  following  cases:  Where  the  time  elapsed 

10  Ophir   etc.   Co.   v.    Carpenter,    4          n  Ophir    etc.    Co.    v.   Carpenter,   4 
Nev.  534,  97  Am.  Dec.  550,  4  Morr.       Nev.  534,  97  Am.  Dec.  550,  4  Morr. 
Min.   Rep.   640.     See,   also,   Oviatt  v.       Min.  Rep.  640. 
Big  Four  etc.  Co.,  39  Or.  118,  65  Pae. 
811. 


416  (3d  ed.)       Pt.  III.     THE  LAW  OF  PEIOE  APPEOPKIATION.       §  384 

was  from  December  to  February,  during  which  a  survey  (but 
nothing  more)  had  been  made.12  Where  three  years  had  been 
consumed  by  a  colonization  company  not  desiring  to  complete 
the  work  before  securing  settlers.13  Where  one  year  elapsed.14 
On  the  other  hand,  it  was  held  not  diligence  where  two  years 
and  six  months  had  elapsed  with  little  done  on  the  facts  pre- 
sented,15 and  a  sale  was  held  to  pass  nothing.16 

Concerning  diligence  in  applying  the  water  to  use  after  com- 
pleting construction  work,  reference  is  made  to  a  later  chapter.17 

(3d  ed.) 

§  384.  Delay  During  Legal  Proceedings. — The  California  legis- 
lature in  1907  enacted  18  in  a  somewhat  ambiguous  amendment 
to  the  code  that  if  the  proposed  appropriation  will  conflict  with 
existing  rights,  the  appropriator  must  within  sixty  days  after 
posting  notice,  bring  suit  to  have  those  rights  settled,  or  to  con- 
demn them  under  the  power  of  eminent  domain,  and  that  he  shall 
have  sixty  days  after  final  judgment  in  which  to  proceed  with 
the  construction  work.  A  somewhat  similar  provision  appears 
in  the  Montana  act  of  the  same  year.19  This  new  California 
provision  was  probably  intended  to  favor  new  appropriators  in  case 
of  delay  due  to* litigation;  but  it  would  probably  hinder  them  by 
forcing  such  litigation  upon  them  whenever  a  possible  conflict  ap- 
pears. The  Montana  act  seems  aimed  expressly  at  the  latter 
result,  rather  than  the  former;  that  is,  to  favor  existing  owners 
by  making  new  appropriations  more  difficult,  rather  than  to  favor 
new  appropriators  by  an  extension  of  time.  In  1911  the  Cali- 
fornia section  was  amended,  dropping  the  above  provision.198 

Delay  due  to  proceedings  before  the  Forest  Service  to  get  a 
Federal  right  of  way  over  a  forest  reserve  is  not  lack  of  diligence 

12  Dyke   v.   Caldwell,   2   Ariz.   394,  16  See,  also,  Stickney  v.  Hanrahan, 

18  Pac.  276.  7  Idaho,   424,   63   Pac.   189,   fourteen 

is  Nevada   etc.  Co.  v.  Bennett,  30  years  in  building  a  sawmill. 

Or.  59,  60  Am.  St.  Eep.  777,  45  Pac.  \  W™'  f^jfj  et  se(*-    . 

472.     Four    years  :Whited    v.    Gavin  18?  Civ.  C. ode,  1 416,  as  amd.  in  Stats. 

(Or.  1909),  105  Pac.  396,  at  398.    Two  18JJ,  0.  429,  quoted  infra,  sec.  1432. 

years  in  Nevada  D.  Co.  V.  Canyon  etc.  **"•  8ia^\es  ™  a   Met  part   of 

Co.  (Or.),  114  Pac.  86.  this  book.     Stats.  1907   c.  185,  p.  489 

^       on  ^  19a  Civ.  Code,  sec.  1416,  as  amended 

14  Oviatt  v.  Big  Four  Co.,  39  Or.  b       gtatg      ign      c     73Q      The    new 

118,  65  Pac.  811.  See  also  Gates  v.  amendment  concerns  appropriations  by 
Settlers'  etc.  Co.,  19  Okl.  83,  91  Pac.  citiegj  counties  Or  towns,  and  makes 

it  sufficient  diligence  if  bonds  are  is- 

15  Colorado  etc.  Co.  v.  Rocky  Ford      sued  within  six  months.     Quoted  in- 
etc.  Co.,  3  Colo.  App.  545,  34  Pac.  580.      fra,  sec.  1432. 


§385  Ch.  17.     HOW  APPEOPRIATION   IS  MADE.      (3d  ed.)  417 

in  California.  In  a  California  case,  within  a  forest  reserve,  plain- 
tiff posted  notice  April  18,  1903,  applied  for  forest  permit  (not 
stated),  received  permit  August  30,  1906,  did  no  work  thereafter. 
Began  suit  September  21,  1906.  Defendant  posted  notice  Sep- 
tember 26,  1902,  commenced  work  within  sixty  days  diligently, 
applied  for  permit  March  5,  1903,  stopped  by  forest  officer  April 
17,  1903,  received  permit  July  28,  1906,  worked  diligently  there- 
after. It  was  held  that  defendant  was  first  in  time,  and  always 
diligent.  Delay  caused  by  Forest  Service,  of  three  years,  is  not 
lack  of  diligence,  being  protected  by  Civil  Code,  section  1422. 
That  section  covers  such  delay  though  the  notice  did  not  in 
words  say  that  the  point  of  diversion  was  in  a  forest  reserve,  for 
the  court  will  take  judicial  notice  of  the  boundaries  of  forest 
reserves.20 

(3d  ed.) 

§  385.  Failure  to  Use  Diligence. — The  failure  to  use  diligence 
is  like  the  failure  to  post  notice,  and  deprives  the  claimant  of  the 
benefit  of  the  doctrine  of  relation.  It  is  not  fatal  if  the  work  is 
nevertheless  completed  before  others  intervene,  and  the  former 
may  claim  as  an  appropriator  by  actual  diversion.21  Against 
interveners,  however,  it  is -fatal.22  As  between  rival  claimants 
neither  of  whom  is  diligent,  probably  the  result  will  be  the  same 
as  discussed  under  the  matter  of  notice,  and  both  will  be  deprived 
of  any  benefit  of  the  doctrine  of  relation,  not  having  complied 
with  the  code.23 

20  Wishon   v.    Globe    etc.    Co.,    158       not  so  relate,  but  generally  dates  from 
Cal.  137,  110  Pac.  290.  the  time  when  the  work  is  completed 

See  infra,  sec.  430,  et  seq.  as  to  ap-  or    the    appropriation    is    fully    per- 

propriations  in  forest  reserves.  fected."     Ophir  etc.  Co.  v.  Carpenter, 

21  Wells  v.  Mantes,  99  Cal.  583,  34  4  Nev.  534,  4  Morr.  Min.  Rep.  640. 
Pac.  324.  23  Such   is   the   principle   on   which 

22  Nevada  etc.  Co.  v.  Kidd,  37  Cal.  De  Necochea  v.  Curtis,  80  Cal.  397,  20 
282 ;  Wells  v.  Mantes,  99  Cal.  583,  34  Pac.   566,  22   Pac.   198,  and  Wells  v. 
Pac.  324;  Cal.  Civ.  Code,  1419;  Cruse  Mantes,  99  Cal.  583,  34  Pac.  324,  were 
v.  McCauley,  96  Fed.  369;  Bear  Lake  decided.     It    may,    however,    be    that 
etc.  Co.  v.  Garland,   164  U.  S.   1,   17  they  will  be  on  the  same  footing  as 
Sup.  Ct.  Rep.  7,  41  L.  Ed.  327;  New  rivals    before    the    code,    where    the 
Loveland  etc.  Co.  v.  Consolidated  etc.  better   right   existed   in   the   one   who 
Co.,  27  Colo.  525,  62  Pac.  366,  52  L.  was   last   diligent;    that  is,   the  right 
R.  A.  266;  Colorado  etc.  Co.  v.  Rocky  would  relate  back  to   the   time   when 
Ford   etc,  Co.,  3   Colo.   App.   545,   34  (if  any)  a  new  start  was  first  made, 
Pac.  580;  Cole  v.  Logan,  24  Or.  304,  and  the  work  thereafter  diligently  car- 
33  Pac.  568;  Kenney  v.  Carillo,  2  N.  ried   on.     See   60   Am.   St.   Rep.   801, 
M.  493 ;  Rodgers  v.  Pitt,  129  Fed.  932.  note. 

"If,  however,  the  work  be  not  prose-  Where  A  started  work  in  1897  but 

cuted  with   diligence,   the   right   does       not  diligently,  and  then  sold  to  B  in 
Water  Rights — 27 


418  (3d  ed.)       Pt.  HE.     THE  LAW  OF  PRIOR  APPEOPEIATION.       §  386 

F.     COMPLETION  OF  CONSTRUCTION  WORK. 
(3d  ed.) 

§  386.    Completion  of  Work  Preparatory  to  Use  of  Water  was 

a  requisite  from  the  earliest  days.24  "However,  he  never  com- 
pleted his  ditch,  but  abandoned  it,  and  it  remained  unused  for 
several  years.  No  water-rights  ever  became  vested  in  him  on  ac- 
count thereof."25  There  is  no  appropriation  without  the  com- 
pletion of  the  actual  labor  necessary  to  take  the  water  into 
possession.1  As  we  have  seen,  the  completion  of  the  preparatory 
work,  followed  by  actual  diversion  for  a  beneficial  purpose,  is 
alone  enough  where  the  doctrine  of  relation  is  not  involved;  the 
requisites  of  notice  and  diligence  being  merely  supplementary  to 
this,  the  prime  factor,  in  order  to  apply  the  doctrine  of  relation 
between  rival  claimants. 

(3d  ed.) 

§  387.    What   Constitutes    Completion. — The    California   code 

definition  of  completion  is  that  "by  completion  is  meant  conduct- 
ing the  waters  to  the  place  of  intended  use."2 

It  is  sometimes  said  that  there  must  be  an  actual  diversion  of 
the  waters ;  but  this  is  too  narrow  a  term,  since  in  peculiar  cases 
the  appropriation  may  be  accomplished  without  any  diversion  at 
all.  Thus,  straightening  out  a  bed  of  a  stream  by  dikes  or  dams 
constitutes  an  appropriation,  though  there  is  no  diversion  at  all.3 
So,  simply  putting  a  large  current  water-wheel  in  the  stream 
itself  would  doubtless  be  an  appropriation  of  enough  water  to 
run  it.  It  has  been  said,  however,  that  domestic  use  made  in  the 
stream  itself  without  diversion  cannot  be  protected  under  the 
law  of  appropriation.4  In  another  case  simply  putting  current- 

1903,  who  then  used  diligence,  B  has  a  *Civ-  Code,  sec.   1417.     Copied  in 

better    right    than    one    seeking    to  McLean's  Idaho  Rev.  Codes,  sec.  3251. 

initiate    an    appropriation    in     1905.  3  Ke"7  v-  Natoma  etc.  Co.,  6  Cal. 

Thorndyke  v.  Alaska  Perseverance  Co.  105>  l  Morr-  Mm-  ReP-  5925  Hoffman 

(Alaska),  164  Fed.  657,  90  C.  C.  A.  £,ft Sto°e>.  7  Cal-  4£  4 =  Morr.  Mm   Rep. 

470  520;    Smsun  v.   De  Freitas,   142   Cal. 

350,  75  Pac.  1092;   McCall  v.  Porter, 

24  Kimball  v.  Gearhart,  12  Cal.  50,  42  Or.  49,  70  Pac.  820,  71  Pac.  976. 
1  Morr.  Min.  Rep.  615.     Now  required  Cf.  Cascade  Co.  v.  Empire  Co.  (Colo.), 
by   sec.    1416,   Cal.    Civ.   Code.     Also  i$i  Fed.  1011. 

Cal.  Stats.  1911,  C.  406,  see.  4.  4  Hutchinson    v.    Watson    D.     Co. 

25  Watts   v.    Spencer,    51    Or.    262,       (1909),   16  Idaho,  484    133  Am.   St. 

94  Pac    39.  ReP-   125>  101  Pac-  10°9'  whlch  case 

protected  such  use  under  the  common 

1  Bear  Lake  etc.  Co.  v.  Garland,  ]aw  Of  riparian  rights,  which  thereto- 
164  U.  S.  1,  17  Sup.  Ct.  Rep.  7,  41  fore  had  been  regarded  as  rejected  in 
L.  Ed.  327.  toto  in  Idaho. 


§§388,389         Ch.  17.     HOW  APPROPRIATION  IS  MADE.       (3d  ed.)  419 

wheels  in  a  stream  was  held  not  to  be  an  appropriation  so  as  to 
secure  a  continuance  of  conditions  necessary  to  running  them, 
saying  that  there  can  be  no  appropriation  without  diversion  in  a 
ditch  or  similar  visible  structure.  This  decision,  however,  is,  in 
reality,  based  upon  a  modification  of  the  law  of  appropriation, 
and  in  that  aspect  has  been  already  considered.5  A  recent  case 
holds  that  building  a  health  and  pleasure  resort  near  a  waterfall 
appropriates  the  waterfall,  which  is  going  pretty  far  in  the  opposite 
direction.58 

Usually,  however,  there  will  be  no  completion  without  diver- 
sion; and  usually  the  diversion  consists  in  carrying  the  water  to 
distant  lands,  wherein  the  doctrine  of  appropriation  has  a  lead- 
ing departure  from  the  common  law  of  riparian  rights.6 

(«d  ed.) 

§  388.    Means   of   Diversion. — Any    means    adapted     to    the 

bona  fide  consummation  of  the  intention  to  apply  the  water  to  the 
beneficial  use  intended  will  be  sufficient. 

A  person  making  an  appropriation  of  water  from  a  natural 
stream  need  not  construct  any  headgate  at  the  place  of  diversion, 
and  if  a  simple  cut  will  accomplish  the  purpose  of  diverting  the 
water  from  the  stream,  it  is,  if  accompanied  with  a  beneficial  use, 
a  good  appropriation  as  against  others  making  a  subsequent  diver- 
sion and  use.7 

(3d  ed.) 

§  389.     Diversion  Alone. — Where  the  doctrine  of  relation  is  not 

invoked,  the  diversion  for  a  beneficial  purpose  is  alone  enough, 
constituting  the  claimant  an  appropriator  by  actual  diversion  as 
against  later  claimants.8 

But  simple  diversion,  if  not  for  a  beneficial  purpose,  is  in- 
effectual in  any  case.  Where  water  is  diverted  from  the  bed  of  a 
stream  not  for  use,  but  to  clear  out  and  drain  the  channel,  a 
mere  drainage  ditch,  there  is  no  appropriation.9  Likewise  where 

5  Supra,  sees.  310  et  seq.,  313.  Am.  St.  Rep.  727,  27  Pac.  7;  Hough 
5a  Cascade     Co.     v.      Empire     Co.       v.  Porter,  51  Or.  318,  95  Pac.  732,  98 

(Colo.),  181  Fed.  1011.  Pac.  1083,  102  Pac.  728. 

6  See  Pomeroy  on  Riparian  Rights,  8  Supra,  sec.  364  et  seq. 

sec.    48;    Kinney.on    Irrigation,    sec.  9  Eddy  v.  Simpson,  3  Gal.  249,  58 

162.  Am.    Dec.   408,    15    Morr    Min.    Rep. 

7  Lower    Tule   etc.   Co.   v.   Angiola  175;   Maeris  v.  Bicknell,   7   Cal.   261, 
etc.  Co.,  149  Cal.  496,  86  Pac.  1081;  68  Am.  Dec.  257,  1  Morr.  Min.  Rep. 
Simmons   v.   Winters,   21    Or.   35,   28  601. 


420  (3ded.)       Pt.  III.     THE  LAW  OF  PRICE  APPROPRIATION.       §390 

more  water  is  diverted  than  can  be  put  to  any  purpose,  no  right 
vests  in  the  surplus  diverted  over  what  is  beneficially  used.10 

(3d  ed.) 

§  390.     Use  of  Existing  Ditches. — What  means  may  be  used  in 

making  the  diversion  being  immaterial,  existing  ditches  or  other 
works  may  be  used,  if  lawfully  obtained.  They  may  be  used  and 
enlarged  with  the  consent  of  their  owner,11  or  may  be  abandoned 
ditches,  to  which  their  owner  makes  no  claim,  or  any  other  works 
where  the  owner  himself  does  not  contest  their  use,  and  the  use 
of  which  will  afford  no  ground  for  opposition  by  strangers  to 
such  owners.12  Such  use  is  revocable  by  the  owner,  but  good 
against  all  others.13  In  a  recent  case  in  the  supreme  court  of 
California,  Mr.  Justice  Shaw  said:14  "A  person  who  is  making 
an  appropriation  of  water  from  a  natural  source  or  stream  is  .not 
bound  to  carry  it  to  the  place  of  use  through  a  ditch  or  artificial 
conduit,  nor  through  a  ditch  or  canal  cut  especially  for  that  pur- 
pose. He  may  make  use  of  any  natural  or  artificial  channel,  or 
natural  depression,  which  he  may  find  available  and  convenient 
for  that  purpose,  so  long  as  other  persons  interested  in  such  con- 
duit do  not  object,  and  his  appropriation  so  made  will,  so  far  as 
such  means  of  conducting  the  water  is  concerned,  be  as  effectual 
as  if  he  had  carried  it  through  a  ditch  or  pipe-line  made  for  that 
purpose  and  no  other."15 

10  Riverside    etc.    v.    Sargent,    112       Lehi  Irr.  Co.  v.  Moyle,  4  Utah,  327,  9 
Cal.  230,  44  Pac.  566;  Senior  v.  An-       Pac.  867. 

derson,  115  Cal.  496,  47  Pac.  454;  In  Colorado,  consumers  from  a  corn- 
Smith  v.  Hawkins,  120  Cal.  86,  52  pany's  canal  are  regarded  as  appro- 
Pac.  139,  19  Morr.  Min.  Rep.  243;  priators  from  the  natural  stream 
Bledsoe  v.  Decrow,  132  Cal.  312,  64  through  the  intermediate  agency  of 
Pac.  397.  that  canal.  Infra,  sec.  1338  et  seq. 

To   constitute   an  appropriation   of  12  Utt  v.  Frey,  106  Cal.  392,  39  Pac. 

water  there  must  not  onty  be  a  diver-  807.     Supra,  sec.  246. 

sion  from  the  stream  and  a  carrying  13  Hough  v.  Porter,  51  Or.  318,  95 

of  it  to  the  place  of  use,  but  it  must  Pac.  732,  98  Pac.  1083,  102  Pac.  728. 

be  beneficially  applied,  and  the  meas-  14  Lower  Tule   etc.   Co.   v.   Angiola 

tire  of  appropriation  does  not  depend  etc.  Co.,  149  Cal.  496,  86  Pac.   1081. 

alone  upon  the  amount   diverted  and  15  Citing  Hoffman  v.  Stone,  7  Cal. 

carried,  but  the  amount  which  is  ap-  49,  4  Morr.  Min.  Rep.  520;   Butte  C. 

plied  to  a  beneficial  use  must  also  be  &  D.  Co.  v.  Vaughan,  11  Cal.  150,  70 

considered.     Woods     v.     Sargent,     43  Am.  Dec.  769,  4  Morr.  Min.  Rep.  552 ; 

Colo.  268,  95  Pac.  932.  Simmons   v.    Winters,    21   Or.    35,   28 

See  infra,  sec.  481  et  seq.  Am.  St.  Rep.  727,  27  Pac.  9;  McCall 

11  Water  Supply  Co.  v.  Larimer  etc.  v.  Porter,  42  Or.  56,  70  Pac.  822,  71 
Co.,  24  Colo.  322,  51  Pac.  496,  46  L.  Pac.  976;  Richardson  v.  Kier,  37  Cal. 
R.  A.  322;   North  Point  Co.  v.  Utah  263.     See,  also,  Evans  D.  Co.  v.  Lake- 
Co.,   16   Utah,   246,   67   Am.   St.   Rep.  side  D.  Co.,  13  Cal.  App.  119,  108  Pac. 
607,  52   Pac.   168,  40  L.  R.  A.   851;  1027. 


5393  Ch.  17.     HOW  APPROPRIATION   IS  MADE.      (3d  ed.)  421 

Where  existing  works  of  others  are  used,  the  statutes  for  post- 
ing notices  need  not  be  followed  where  there  is  no  delay  in  the 
diversion;  for  no  claim  is  then  made  to  the  doctrine  of  relation; 
nor,  in  Colorado,  need  the  statutes  for  filing  maps  be  followed.16 
But  the  appropriation,  whether  notice  is  posted  or  not,  is  a  new 
one  by  actual  diversion,  standing  in  its  own  shoes,  and  can  claim 
nothing  from  the  original  appropriation  through  the  same 
works.17  The  appropriator  in  such  case  has  no  need  to  invoke 
the  doctrine  of  relation,  since  no  time  needs  to  be  lost  in  con- 
struction work.  His  appropriation  need  not  proceed  under  the 
statutory  formalities  in  such  a  case ;  he  claims  as  an  appropriator 
by  actual  diversion.18  But  the  appropriation  consequently  dates 
from  the  new  use,  not  from  the  original  building  of  the  ditch. 
The  new  appropriation  cannot  claim  to  tack  on  to  the  old  one.19 
In  Utt  v.  Frey,20  the  court  said:  "If  one  animated  by  a  like 
desire  to  appropriate  water  under  like  circumstances  finds  a  ditch 
already  constructed  to  hand,  takes  peaceable  possession  thereof, 
and  appropriates  the  water  for  a  like  or  similar  useful  purpose, 
he  thereby  acquires  a  like  right  as  against  all  the  world,  except 
the  true  owner  or  those  holding  "under  or  through  him.  If  nature 
or  art  has  furnished  the  medium  of  appropriation  he  may  avail 
himself  of  the  gift  or  labor,  without  being  held  liable  to  those 
having  no  interest  therein  and  in  nowise  connected  therewith. 
To  the  owner  of  a  ditch  thus  possessed  and  used,  such  apprppri- 
ator  must  account  until  his  possession  and  user  ripens  into  a  title 
by  prescription  or  adverse  user.  His  right  in  such  case  will 
depend  for  priority  as  against  other  appropriators  of  water  from 
the  same  stream,  upon  the  date  of  his  possession  and  appropria- 
tion, and  not  upon  the  date  of  the  original  construction  of  the 
ditch,  and  appropriation  by  some  other  person  under  whom  he 
does  not  hold,  and  between  whom  and  himself  there  is  no  privity 
of  estate.  His  appropriation  in  such  a  case  is  a  new  and  inde- 
pendent one,. and  must  stand  or  fall  upon  its  own  merits."21 

16  Water  Supply  Co.  v.  Larimer  etc.       Cal.  152,  54  Pac.  726 ;   Tubbs  v.  Rob- 
Co.,  24  Colo.  322,  51  Pae.  496,  46  L.       «rts,  40  Colo.  498,  92  Pac.  220. 

R.  A.  322.  19  McGuire  v.  Brown,  106  Cal.  660, 

17  Union     etc.     Co.     v.     Dangberg  39  Pac.  1U60,  30  L.  R.  A.  384. 
(Nev.),  81  Fed.  73.  20  106  Cal.  at  396,  39  Pac.  807. 

18  Ante,  sec.  364  et  seq. ;  Brown  v.  21  Cf.,  however,  McRae  v.  Small,  48 
Newell,  12   Idaho,  166,  85  Pac.  385;  Or.  139,  85  Pac.  505. 

Utt   v.   Frey,    106   Cal.   392,   39   Pac.  In  Chiatovich  v.  Davis,  17  Nev.  133, 

807;  Wood  v.  Etiwanda  etc.  Co.,  122       136,  28  Pac.  239,  240,  the  court,  in 


422   (3ded.)     Pt.  III.     THE  LAW  OF  PRIOR  APPROPRIATION.         §391 

Where  one  uses  an  existing  ditch  abandoned  by  the  original 
appropriator,  his  right  does  not  succeed  to  the  old  one,  but  stands 
upon  the  extent  of  his  own  actual  use.  Any  surplus  in  the  ditch 
may  be  appropriated  by  others,  or  they  may  take  the  surplus 
from  the  natural  stream  before  it  reaches  the  ditch.22 
Special  reference  is  made  to. a  preceding  section.23 

(3d  ed.) 

§  391.  Same. — The  use  of  existing  works  against  the  will  and 
objection  of  the  owner  when  contested  by  him  raises  an  entirely 
different  question,  however,  and  as  to  him  the  appropriation  is 
invalid,  in  the  absence  of  condemnation  proceedings.  The  Oregon 
court  recently  said:24  "Plaintiff  in  error  also  forgets  that  it  is 
just  as  necessary  to  the  creation  and  preservation  of  a  water-right 
to  provide  means  for  the  continual  diversion  of  the  water  from 
its  natural  channel  and  for  conducting  it  to  the  place  where  it  is 
applied  to  some  beneficial  purpose,  as  it  is  to  apply  it  to  the  bene- 
ficial purpose.  And  he  cannot  arbitrarily  seize  and  use  another's 
ditch,  or  interest  in  a  ditch,  for  that  purpose."  "No  consent  to 
divert  the  water  from  the  ditch  was  ever  secured,  but  Gage  arbi- 
trarily seized  and  used  the  conduit  constructed  across  patented 
land,  and  hence  plaintiff,  as  his  successor  in  interest,  never  ac- 
quired any  right  by  appropriation  to  the  use  of  water  from 
Reeves'  Creek."  The  question  here  is  the  same  as  that  involved 
in  the  discussion  of  whether  an  appropriation  can  be  made  by 
entry  on  private  land,  which  need  not  here  be  repeated.  To 
enlarge  a  ditch  on  another's  land,  like  building  a  new  one 
thereon,  is  a  taking  of  an  interest  in  his  property,  and  can  only 
be  done  against  his  protest  by  condemnation  for  a  public  use,  or 
otherwise  acquiring  a  valid  easement.25 

considering  this  question,  said:    "The  Colo.    601,   606,    19   Pac.    761;    Gould 

plaintiff    testified    that    early    in    the  on  Waters,  sec.  234;  Black's  Pomeroy 

year  1876  he  appropriated  all  of  the  on  Water  Rights,  sec.  60;  Kinney  on 

waters  of  the  creek.     Before  that  time  Irrigation,  sec.  253 ;  Union  M.  Co.  v. 

these   waters   had   been   used   to   irri-  Dangberg,    81    Fed.    73;    Sternberger 

gate  plaintiff's  land,  but  as  he  has  not  v.    Seaton   etc.    Co.    (1909),   45   Colo, 

in  anywise   connected   himself   in   in-  401,  102  Pac.  168;  Head  v.  Hale,  38 

terest  with  those  who  first  cultivated  Mont.  302,  100  Pac.  222. 

the  land  and  appropriated  the  water,  See  infra,  sec.  555,  parol  sale, 

his   own  appropriation  in   1876   must  22  Tubbs  v.  Eoberts,  40  Colo.  498, 

be    treated    as    the    inception    of    his  92  Pac.  220. 

right."     To  the  same  effect,  see  Salina  23  Supra,  sec.  246. 

Creek  Irr.  Co.  v.  Salina  Stock  Co.,  7  24  McRae  v.  Small,  48  Or.  139,  85 

Utah,    456,    27    Pac.    578;    Smith    v.  Pac.  503;   citing  McPhall  v.  Forney, 

O'Hara,   43    Cal.    371,    1    Morr.   Min.  4  Wyo.  556,  35  Pac.  773. 

Rep.   671;    Burnham  v.  Freeman,   11  25  Supra,  sec.  221,  et  seq. 


§§392,393         Ch.  17.     HOW  APPROPRIATION  IS  MADE.       (3d  ed.)  423 

Under  the  recent  decision  of  the  supreme  court  of  the  United 
States  in  Clark  v.  Nash,1  the  statute  of  Utah  permitting  con- 
demnation to  enlarge  another's  ditch  to  carry  water  to  one's  own 
.private  estate  for  irrigation  was  held  constitutional.  Similar 
statutes  have  for  some  time  stood  on  the  statute  books  of  other 
States.  These  and  possibly  similar  statutes,  enacted  to  declare 
the  doctrine  of  Yunker  v.  Nichols,2  will  probably  be  held  valid  by 
construing  them  as.  providing  for  condemnation.  At  all  events, 
statutes  under  the  permission  of  Clark  v.  Nash  are  likely  to  be 
passed  hereafter  similar  to  the  Utah  statute,  and  the  result  will 
be  general  in  the  arid  regions  that  an  irrigator  may  build  his 
ditch  over  the  land  of  another  or  enlarge  another's  ditch,  without 
his  consent,  after  due  notice  and  payment  of  compensation.  A 
further  discussion  may  be  *  left  to  the  chapter  upon  eminent 
domain.3 

(3d  ed.) 

§  392.     Changes  in  the  Course  of  Construction. — Slight  changes 

may  be  made,  and  the  original  surveyed  line  departed  from.4 


G.     RELATING  BACK. 
(3d  ed.) 
§  393.    Origin  of  the  Doctrine. — The  question  at  what  date  the 

right  accrues  as  between  rival  claimants  was  first  before  the  court 
in  Conger  v.  Weaver.5  The  court  said:  "But,  from  the  nature 
of  these  works,  it  is  evident  that  it  requires  time  to  complete 
them,  and  from  their  extent,  in  some  instances,  it  would  require 
much  time ;  and  the  question  now  arises,  at  what  point  of  time 
does  the  right  commence,  so  as  to  protect  the  undertaker  from 
the  subsequent  settlements  or  enterprises  of  other  persons.  If  it 
does  not  commence  until  the  canal  is  completed,  then  the  license 
is  valueless,  for  after  nearly  the  whole  work  has  been  done,  any- 
one, actuated  by  malice  or  self-interest,  may  prevent  its  accom- 
plishment; any  small  squatter  settlement  might  effectually 
destroy  it.  But  I  apprehend  that,  in  granting  the  license  which 
we  have  presumed  for  the  purpose  before  us,  the  State  did  not 
intend  that  it  should  be  turned  into  so  vain  a  thing  but  designed 

1  198  TJ.  S.  361,  25  Sup.  Ct.  Rep.  Am.  Dec.  528,  1  Morr.  Min.  Rep.  594; 
676,  49  L.  Ed.  1085,  4  Ann.  Cas.  1171.  Parker  v.  Kilham,  8  Cal.  77,  at  80,  68 

2  Supra,  sec.  223.  Am.  Dec.  310,  4  Morr.  Min.  Rep.  522 ; 

3  Infra,  sec.  607  et  seq.  Cal.  Civ.  Code,  sec.  1415. 

4  Conger  v.  Weaver,  6  Cal.  548,  65  56  Cal.  548,  1  Morr.  Min.  Rep.  594. 


424  (3d  ed.)     Pt.  III.     THE  LAW  OF  PRIOR  APPROPRIATION.         §  393 

that  it  should  be  effectual  for  the  object  in  view;  and  it  conse- 
quently follows  that  the  same  rule  must  be  applied  here  to  protect 
this  right  as  in  any  other.  Possession  and  acts  of  ownership  are 
the  usual  indications  of  a  right  of  property,  and  these  must  be 
judged  according  to  the  nature  of  the  subject  matter.  One  is  in 
possession  of  an  empty  house  who  has  the  key  to  its  door  in  his 
pocket ;  of  a  horse,  when  he  is  riding  it ;  of  cattle  pasturing  upon 
his  ground ;  so  a  miner,  who  has  a  few  square  feet  for  his  mining 
claim  which  he  cannot  directly  occupy,  has  possession,  because 
he  works  it,  or  because  he  has  staked  it  off  to  work  it,  if  his  acts 
show  no  intention  to  abandon ;  building  a  dam  is  taking  possession 
of  water  as  a  usufruct.  So,  in  the  case  of  constructing  canals, 
under  the  license  from  the  State,  the -survey  of  the  ground,  plant- 
ing stakes  along  the  line,  and  actually  commencing  and  diligently 
pursuing  the  work,  is  as  much  possession  as  the  nature  of  the  sub- 
ject will  admit,  and  forms  a  series  of  acts  of  ownership  which 
must  be  conclusive  of  the  right." 

In  Sieber  v.  Frink  the  Colorado  court  said:6  "We  accept  the 
rule  adopted  in  California  and  Nevada  in  this  connection.  This 
rule  is  stated  as  follows:  'Although  the  appropriation  is  not 
deemed  complete  until  the  actual  diversion  or  use  of  the  water, 
still  if  such  work  be  prosecuted  with  reasonable  diligence,  the 
right  relates  to  the  time  when  the  first  step  is  taken  to  secure 
it.'  "  In  Alaska  there  appears  to  be  no  statute  governing  the 
making  of  an  appropriation,  but  the  right  is  held  to  relate  back 
to  the  commencement  of  the  work,  nevertheless,  since  the  rule 
always  existed  under  the  decisions  of  courts  from  the  beginning 
of  the  doctrine  of  appropriation,  before  the  passage  of  statutes.7 

«  7  Colo.  148,  2  Pac.  901.  handle   Co.,    11   Idaho,   405,   83   Pac. 

7  Miocene  Ditch  Co.  v.  Jacobsen,  347;  Head  v.  Hale,  38  Mont.  302,  100 

146  Fed.  680,  77  C.  C.  A.  106;  Me-  Pac.  222;  Wright  v.  Cruse,  37  Mont. 

Farland  v.  Alaska  etc.  Co.,  3  Alaska,  177,  95  Pac.  370;  Hough  v.  Porter, 

308.  See  Van  Dyke  v.  Midnight  Sun  51  Or.  318,  95  Pac.  732,  98  Pac.  1083, 

Co.  (Alaska),  177  Fed.  90,  100  C.  C.  102  Pac.  728;  and  cases  cited  through- 

A.  503.  out  this  section. 

The  doctrine  of  relation  was  also  "In  determining  the  question  of 

applied  inter  alia  in  Irwin  v.  Strait,  the  time  when  a  right  to  water  by 

18  Nev.  436,  4  Pac.  1215 ;  Nevada  etc.  appropriation  commences,  the  law 

Co.  v.  Bennett,  30  Or.  59,  60  Am.  St.  does  not  restrict  the  appropriator  to 

Rep.  777,  45  Pac.  472;  Water  Supply  the  date  of  his  use  of  the  water,  but, 

Co.  v.  Larimer  etc.  Co.,  24  Colo.  322,  applying  the  doctrine  of  relation,  fixes 

51  Pac.  496,  46  L.  R.  A.  322 ;  Whited  it  as  of  the  time  when  he  begins  his 

v.  Gavin  (Or.  1909),  105  Pac.  396;  dam  or  ditch  or  flume,  or  other  appli- 

Beckwith  v.  Sheldon,  154  Cal.  393,  97  ance  by  meansx)f  which  the  appropri- 

Pac.  867 ;  Sandpoint  etc.  Co.  v.  Pan-  ation  is  effected,  provided  the  enter- 


§  394  Ch.  17.     HOW  APPROPRIATION   IS  MADE.      (3d  ed.)  425 

The  doctrine  is  enacted  in  the  California  Civil  Code  8  and  in 
the  statutes  of  all  the  Western  States  in  one  form  or  another.8 

With  regard  to  the  doctrine  of  relation  under  the  Federal  Eight 
of  Way  Acts,  reference  is  made  to  a  later  chapter.10 

(3d  ed.) 

§  394.    Effect  of  Relation. — The  doctrine  of  relation  is  invoked 

to  protect  bona  fide  appropriators  during  the  time  they  are  build- 
ing ditches  and  other  preparatory  works;  and  at  the  same  time 
to  give  no  comfort  to  those  who,  not  bona  fide,  try  to  monopolize 
water  for  speculative  purposes.  It  gives  a  qualified  protection  to 
the  former.  His  right  in  any  case  comes  into  existence  only  on 
completion  of  the  work.  But  his  claim  is  a  preferred  one.  The 
fact  that  he  posted  his  notice  first  and  worked  diligently  gave 
him  a  preference  over  others;  a  kind  of  option,  though  his  title 
did  not  ripen  until  the  option  was  with  diligence  exercised  by  a 
complete  diversion.  This  was  decided  after  much  discussion  in 
the  case  of  Nevada  etc.  Co.  v.  Kidd,11  holding  in  effect  that  the 
doctrine  of  relation  does  not  vest  a  water-right  at  the  time  of 
posting  notice,  with  a  condition  subsequent,  as  is  often  thought, 
but  vests  the  right  upon  actual  diversion,  with  a  preference  to 
him  who  first  posted  notice  and  worked  diligently.12 

It  gives  a  preference  to  certain  appropriators  from  the  time  of 
completion,  thence  into  the  future;  it  does  not  completely  carry 

prise  is  prosecuted  with  reasonable  dil-  3120,  3121,  provides  that  upon  com- 

igence."     Union  Min.  Co.  v.  Dangberg,  pliance  with  the  statute  the   date  of 

81  Fed.  73,  citing:  Ophir  Silver  Min.  priority  relates  back  to  the  time  when 

Co.  v.  Carpenter,  4  Nev.  534,  544,  97  the   work,   excavation   or  construction 

Am.  Dec.  550,  4  Morr.  Min.  Rep.  640 ;  commenced.     The    rule   is    much    the 

Irwin  v.  Strait,  18  Nev.  436,  4  Pac.  same  under  State  Water  Codes  in  the 

1215;    Kimball   v.   Gearhart,    12    Cal.  next    chapter.    See    statutes    in    Part 

28,  1  Morr.  Min.  Rep.  615;  Canal  Co.  VIII,  below. 

v.  Kidd,  37  Cal.  283,  311;  Osgood  v.  10  Infra,  sec.  435. 

Mining  Co.,  56  Cal.  571,  578,  5  Morr.  n  37  Cal.  282.     Quoted  supra,  sec. 

Min.  Rep.  37;  Sieber  v.  Frink,  7  Colo.  374. 

149,    154,    2    Pac.    901 ;    Woolman    v.  12  Accord,   De   Necochea   v.   Curtis, 

Garringer,  1  Mont.  535,  1  Morr.  Min.  80  Cal.  398,  20  Pac.  563,  22  Pac.  198, 

Rep.  675;  Kinney  on  Irrigation,  sees.  and  Wells  v.  Mantes,  99  Cal.  583,  34 

160,  161;   Black's  Pomeroy  on  Water  Pac.  324. 

Rights,  sec.   55.  "The    possession   of   the   unfinished 

8  Sec.  1418,  below  quoted.  dam  and  canal,  or  of  the  site,  is  not 

9  In  Washington,  Pierce's  Code,  sec-  the  possession  and  enjoyment  of  the 
tion  5134,  provides  that  the  right  re-  water,   but   merely   the   possession   of 
lates      back     to     posting     of     notice.  the  means  of  acquiring,  by  the  exer- 
South  Dakota  Statutes  of  1907,  chap-  cise  of  due   diligence,  a  right  to   the 
ter  180,  section  2,  does  the  same  as  to  water  in  the  future.     This  is  the  doc- 
rights,  before  passage  of  the  act.     In  trine  of  this  court,  as  established  by 
Texas,  Sayles'  Civil  Statutes,  articles  a  long  series  of  decisions.     The  right 


426  (3d  ed.)     Pt.  III.     THE  LAW  OF  PEIOE  APPROPRIATION.         §  394 


title  as  owner  of  the  water-right  back  to  the  date  notice  is  posted. 
Consequently,  in  the  interim  between  posting  notice  and  actual 
completion  (which  may  be  a  considerable  time)  anyone  else  may 
divert  the  water.  There  is  no  right  of  action  for  such  diversion ; 
there  is  as  yet  no  water-right  acquired.13  But  after  completion, 
the  rights  of  the  rival  claimants  for  future  purposes  are  consid- 
ered as  relating  back  to  the  date  of  notice.  The  priority  of 
appropriation  for  future  purposes  is  determined  by  looking  back 
to  that  date.  All  of  these  propositions  are  laid  down  in  Nevada 
etc.  Co.  v.  Kidd,14  a  case  since  frequently  cited  and  approved.15 

The  appropriator  need  not  take  notice  of  the  interveners.  His 
right  relates  back  and  he  is  not  under  a  duty  to  prevent  others 
from  attempting  to  acquire  temporary  rights  in  the  meantime.16 

If  an  appropriator,  after  duly  posting  a  notice,  and  while  prose- 
cuting his  work  with  diligence,  posts  a  second  notice  of  appropria- 
tion of  the  same  water,  the  right  may  still  relate  back  to  the  first 
notice.17 


to  the  water,  or  water-right,  as  it  is 
commonly  called,  is  only  acquired  by 
an  actual  appropriation  and  use  of 
the  water.  The  property  is  not  in 
the  corpus  of  the  water,  but  is  only 
in  the  use.  The  latter  doctrine  was 
laid  down  in  Eddy  v.  Simpson,  3  Cal. 
249,  15  Morr.  Min.  Rep.  175,  and  has 
been  often  repeated  since.  In  Kidd 
r.  Laird,  15  Cal.  179,  4  Morr.  Min. 
Rep.  571,  our  predecessors  said:  'Un- 
til a  claimant  ifr  himself  in  position 
to  use  the  water,  the  right  to  the 
water,  or  water-right,  does  not  exist 
in  such  sense  that  the  mere  diversion 
and  use  of  the  water  by  another,  is  a 
ground  of  action  either  to  recover  the 
water,  or  for  damages  for  the  diver- 
sion.'" Nevada  C.  &  S.  C.  Co.  v. 
Kidd,  37  Cal.  282,  at  310,  311.  . 

13  "A  party  may  to-day  take  up 
a  site  for  a  dam  and  canal,  and  claim 
the  waters  of  a  river,  to  be  diverted 
at  that  point,  and  immediately  com- 
mence work  with  a  view  of  appro- 
priating the  water  to  his  use  for  min- 
ing purposes,  and  yet,  although  labor- 
ing with  all  diligence,  be  unable 
actually  to  use  the  water  for  any  pur- 
pose for  years  to  come.  Until  he  can 
use  it,  another  party  may  divert  the 
whole  water  and  use  it,  provided  he 
can  do  so  without  injury  to  the  plain- 
tiff's dam  or  canal,  or  the  progress  of 


his  work";  but  adding  that,  after  the 
former  is  ready  to  use  the  water,  then 
his  right  will  thereupon  "for  the  pur- 
poses of  priority  and  of  redressing  any 
injuries  that  may  thereafter  accrue, 
date  by  relation  from  the  first  act  in 
selecting  the  location  and  making  the 
claim." .  Nevada  C.  &  S.  C.  Co.  v. 
Kidd,  37  Cal.  282,  at  310. 

"We  have  before  seen,  that  until 
plaintiff  is  in  a  condition  to  use  the 
water,  the  defendants  are  entitled  to 
divert  and  use  it,  provided  they  can 
do  so  without  obstructing  the  plaintiff 
in  the  construction  of  its  own  works 
with  an  intention  to  make  a  future 
actual  appropriation  and  use;  and 
that  there  can  be  no  right  of  action 
against  defendants  for  diverting  the 
water  in  its  own  ditch,  which  does  not 
interfere  with  plaintiff's  work,  till 
the  plaintiff  is  itself  in  a  condition 
to  divert  and  use  it."  Nevada  C.  & 
S.  C.  Co.  v.  Kidd,  37  Cal.  282,  at  319. 

14  37  Cal.  282. 

15  See  supra,  sec.  374. 

16  Woolman  v.  Garringer,   1   Mont. 
535,  1  Morr.  Min.  Rep.  675. 

17  Pomeroy  on  Riparian  Rights,  sec. 
51;  Norman  v.  Corbley,  32  Mont.  195, 
79   Pac.    1059;     Osgood   v.    Eldorado 
etc.   Co.,  56   Cal.  571,  5  Morr.  Min. 
Rep.  37. 


§394  Ch.  17.     HOW  APPROPRIATION   IS   MADE.      (3d  ed.)  427 

The  doctrine  of  relation  is  enacted  in  the  Civil  Code  of  Cali- 
fornia:18 "By  a  compliance  with  the  above  rules  the  claimant's 
right  to  the  use  of  the  water  relates  back  to  the  time  notice  was 
posted."  There  is  no  reason  to  think  that  this  will  not  be  con- 
strued in  accordance  with  the  decision  in  Nevada  etc.  Co.  v. 
Kidd,19  as  to  intervening  use,  though  the  point  of  temporary 
intervening  use  has  not  been  under  actual  decision  since  the  adop- 
tion of  the  code.  The  doctrine  of  relation  was  also  applied  in  an 
early  Nevada  case,20  with  a  dictum  that  relation  was  to  the  com- 
mencement of  actual  work — not  necessarily  to  the  notice.21  The 
point  is  settled  in  California  by  the  code  provision  quoted  above, 
and  in  the  arid  States  by  statutes  dating  priority  from  the  date 
of  filing  application  with  the  State  Engineer.22 

Notice  by  relation  prevails  over  the  riparian  rights  of  an  inter- 
vening settler,  both  as  to  water-rights  and  ditch-rights.23  Where 
an  appropriator  posted  notice,  and  thereafter  a  settler  homesteaded 
the  land  on  which  the  stream  arose  (from  artesian  wells),  it  was 
held  that  the  appropriator,  with  diligence,  was  entitled  to  con- 
tinue building  his  ditches,  though  not  entitled  to  develop  any  new 
water  by  digging  new  wells.24  E-elation  back  may  preserve  a 
ditch-right  over  a  mining  claim  interveningly  located  before  the 
ditch  was  completed.25  But  it  will  not  put  the  ditch  under  an 
intervening  mortgage.1 

The  doctrine  of  relation  as  applied  to  the  acquisition  of  rights 
of  way  and  reservoir  sites  has  been  held  inapplicable  against  the 
United  States,  which  may  hence  withdraw  the  reservoir  site  from 
acquisition  any  time  before  the  completion  of  the  reservoir, 
though  preliminary  filings  had  been  made.2 

18  Sec.  1418.  23  De    WolfskiU   v.    Smith,    5    Cal. 

19  See  De  Necochea    v.  Curtis,  80       APP-  175,  89  Pac.  1001. 

Cal.  396,  20  Pac.  563,  22  Pac.  198;  4  D«    WolfskiU    v.    Smith,    5    Cal. 

Burrows  v.  Burrows,  82  Cal.  564,  23  APP-  175>  89  Pac.  1001. 

Pac.   146;    Wells  v.  Mantes,   99   Cal.  »  Miocene     etc.     Co.    y.    Jacobsen, 

583   34  Pac.  324.  146  Fed.  680>  77  C-  C-  A-  106-     As  to 

«f\.oif    ia  TV0TT    AW    A.  relation  back  of  a  ditch  on  public  land 

20  Irwin  v.  Strait,   18  Nev.  436,  4  when  conflicting  with  a  to^nsite  loca. 

^ac-  -1  1&t  tion,  see  Baker  etc.  Co.  v.  Baker  City 

21  The    dictum   is    disapproved    by       (Or.),  113  Pae.  9. 

Pomeroy  on  Riparian  Rights,  sec.  54,  i  Bear   Lake   etc.    Co.   v.   Garland, 

note,  and  Kinney  on  Irrigation,  sec.  164  U.   8.  1,  17  Sup.  Ct.  Rep.  7,  41 

168.     See  Whited  v.  Cavin  (Or.  1909),  L.  Ed.  327. 

105  Pac.  396.  2  United  States  v.  Rickey,  164  Fed. 

22  Infra,  see.  421.  496. 


428   (3d  ed.)     Ft.  III.     THE  LAW  OF  PRIOR  APPROPRIATION.         §  395 

H.     ACTUAL  APPLICATION. 

(3d  ed.) 

§  395.  Necessity  for  Actual  Application  and  Use  Under  the 
Possessory  Origin  of  the  Law. — Water  must  be  continually  ap- 
plied to  a  beneficial  use  under  the  doctrine  of  appropriation.  It 
was  the  theory  on  which  the  law  arose,  however,  that  actual  use 
•was  not  itself  an  element  in  the  creation  of  the  right,  but  that 
nonuse  would  defeat  a  right;  that  actual  application  was  not  a 
condition  precedent,  but  matter  subsequent,  operating  by  way 
of  abandonment. 

Historically,  an  appropriation  was  simply  the  taking  possession 
of  the  stream  (a  "possessory  right"  on  the  public  domain),  so 
that  diversion  was  the  last  step  to  such  possession,  and  the  last 
step  in  completing  the  appropriation.  Consequently  the  Cali- 
fornia Civil  Code  says:3  "By  completion  is  meant  conducting  the 
waters  to  the  place  of  intended  use,"  ignoring  actual  application 
as  an  element  of  completion  of  the  right. 

This  is  but  one  illustration  of  the  possessory  origin  of  the  law 
of  appropriation.  As  a  possessory  right  upon  the  public  domain 
(though  turned  into  a  freehold  on  the  public  domain  by  the  act 
of  1866,  and  California  still  confines  the  law  of  appropriation  to 
the  public  domain),  the  right  took  on  typical  possessory  charac- 
teristics. It  consisted  in  possession  of  the  flow  of  the  stream; 
diversion  constituted  the  appropriation  because  it  constituted 
possession,  whence  the  rule  protecting  appropriators  "by  actual 
diversion"  and  likewise  the  enforcement  of  the  doctrine  of  rela- 
tion upon  completion  of  construction  work  and  diversion ;  capac- 
ity of  ditch,  as  the  amount  in  possession,  measured  the  right;  the 
right,  as  one  to  possession  of  the  stream,  was  independent  of 
place  or  mode  of  use ;  nonuse  did  not  cause  loss  of  right  without 
voluntary  abandonment  of  possession ;  injunctions  were  granted 
to  protect  the  flow  in  possession  though  no  damage  to  use  had 
arisen.4  Beneficial  use  was  represented  in  the  acquisition  of  the 
right  by  the  requisite  of  bona  fide  intention,  already  set  forth. 
The  actual  accomplishment  of  this  intention  was  necessary,  but 
the  lack  of  its  accomplishment  was  regarded  as  matter  subse- 
quent, working  by  way  of  defeasance,  on  the  principles  of  aban- 
donment; the  right  being  complete  on  diversion,  that  completing 

3  Section  1417. 

*  See    cross-references    supra,    sec.   139. 


§  396        ..          Ch.  17.     HOW  APPKOPRIATION   IS   MADE.      (3d  ed.)  429 

the  formalities  equivalent  to  taking  possession  of  the  stream. 
The  actual  application  and  use  of  the  water  need  not  follow  im- 
mediately. The  appropriator  had  a  reasonable  time  in  which  to 
prepare  his  fields  or  the  place  of  use.  An  unreasonable  delay 
was  simply  evidence  of  abandonment  of  a  right  acquired  by  a  diver- 
sion made  in  good  faith.5 

It  is  necessary  to  appreciate  this  historical  view,  for  otherwise 
it  is  not  possible  to  understand  many  early  decisions  in  this  and 
other  connections  (such  as  those  measuring  the  amount  appro- 
priated by  the  capacity  of  the  ditch  as  well  as  by  beneficial  use).6 

(3d  ed.) 

§  396.     Same — Under    the    View  Now    Developing. — But  the 

law  of  appropriation  in  recent  years  (especially  under  the  Colo- 
rado doctrine,  where  it  is  the  sole  law  of  the  State  and  not  con- 
fined, as  under  the  California  doctrine,  to  the  public  domain),  has 
been  throughout  departing  its  possessory  origin  and  character- 
istics. It  is  rapidly  changing  from  a  possessory  to  a  specific  use 
system,  regarding  less  the  possession  of  a  definite  part  of  the  flow 
of  the  stream,  than  the  requirements  of  a  specific  use,  such  as  the 
irrigation  of  a  specific  tract  of  land.  In  some  respects  this  change 
is  fairly  well  established ;  the  Colorado  doctrine  no  longer  re- 
gards the  right  as  springing  from  a  possessory  right  on  the  pub- 
lic domain,  but  usually  considers  it  obtained  from  the  State; 
capacity  of  ditch  has  been  almost  wholly  displaced  by  beneficial 
use  as  measuring  the  right;  nonuse  ipso  facto  is  causing  loss  of 
right  without  regard  to  any  question  of  intention  not  to  abandon 
the  flow;  injunctions  are  not  granted  to  protect  the  flow,  but  only 
where  use  is  damaged.7  In  these  matters  the  change  is  fairly 
well  established ;  in  others  not  quite  so  established ;  that  is,  the 
possessory  characteristic  of  being  independent  of  place  or  mode 
of  use  is  still  rather  strongly  maintained;  although  there  is  a 
strong  movement  at  the  same  time  to  make  the  right  (for  irriga- 
tion) inhere  in  the  land  irrigated. 

With  regard  to  the  present  matter,  the  change  is  about  in  a 
middle  course;  in  some  respects  actual  application  to  use  is  fully 
held  an  element  in  creating  a  right.  The  Colorado  court,  which 
has  very  largely  departed  from  the  possessory  origin  of  the  law, 

5  See  infra,  sec.  483,  future  needs;  6  See,  generally,  supra,  sec.  139. 

and   sec.   567   et  seq.,   abandonment;  7  See    cross-references,    supra,    sec. 

and  sec.  575  et  seq.,  forfeiture.  139. 


430  (3d  ed.)     Pt  III.     THE  LAW  OF  PEIOE  APPEOPEIATION.         §  396 

interpreted  the  rule  as  being  that  actual  application  of  the  water 
to  the  use  intended  is  a  condition  precedent  to  the  creation  of  the 
right,  and  not  necessarily  matter  subsequent ; 8  and  this  has  been 
followed  generally  in  the  desert  States  and  became  the  accepted 
form  of  statement,  viz.,  that  there  can  be  no  appropriation  until 
the  actual  use  is  made.9  ''No  principle  in  connection  with  the 
law  of  water-rights  in  this  State  is  more  firmly  established  than 
that  the  application  of  water  to  beneficial  use  is  essential  to  a 
completed  appropriation,"10  expressly  holding  that  the  question 
is  not  one  of  abandonment.  And  yet,  while  this  is  the  general 
form  of  statement  to-day,  the  matter  is  really  in  a  state  of  transi- 
tion, as  may  be  seen  from  some  differing  rulings  made  when  the 
point  is  called  into  actual  decision. 

It  is  ruled  in  Colorado  that  a  consumer  from  a  distributing 
company  is  the  true  appropriator,  and  not  the  company,  because 
actual  use  is  made  by  the  consumer,  until  which  there  is  no  ap- 
propriation. In  a  leading  Colorado  case,11  it  is  said:  "To  con- 
stitute a  legal  appropriation,  the  water  diverted  must  be  applied 
within  a  reasonable  time  to  some  beneficial  use.  That  is  to  say, 
the  diversion  ripens  into  a  valid  appropriation  only  when  the 
water  is  utilized  by  the  consumer ' ' ;  and  it  is  hence  ruled  in  Colorado 
that  the  consumers  own  the  natural  water  resources.12  Then  in 
other  jurisdictions,  while  actual  use  is  declared  an  element  in 

8  Thomas  v.  Guiraud,  6  Colo.  533;  pleted  valid  appropriation  of  water, 

Wheeler  v.  Northern  Irr.  Co.,  10  Colo.  is  the  application  of  it  to  a  beneficial 

582,  3  Am.  St.  Rep.  603,  17  Pae.  487;  purpose.     Whatever  else  is  required  to 

Platte  etc.  Co.  v.  Northern  Irr.  Co.,  be  or  is  done,  until  the  actual  appli- 

12  Colo.  531,  21  Pae.  711;   Farmers'  cation   of   the  water  is   made   for   a 

etc.  Co.  v.  Southworth,  13  Colo.  Ill,  beneficial  purpose,  no  valid  appropri- 

21  Pae.  1029,  4  L.  E.  A.  767;  Combs  ation  has  been  effected."     Sowards  v. 

v.  Agric.  D.  Co.,  17  Colo.  146,  31  Am.  Meagher  (Utah,  1910),  108  Pae.  1113. 

St.  Eep.  275,  28  Pae.  966;  Fort  Mor-  Accord,   Hagerman   Co.   v.   McMurray 

gan  etc.  Co.  v.  S.  Platte  etc.  Co.,  18  (N.  M.),  113  Pae.  823. 

Colo.  1,  36  Am.  St.  Eep.  259,  30  Pae.  In  Idaho  it  is  said    (dictum")    that 

1032;  Cash  v.  Thornton,  3  Colo.  App.  actual  application  to  use  is  "The  final 

475,  34  Pae.  268;  Farmers'  etc.  Co.  v.  act  of  appropriation."     City  of  Poca- 

Agricultural   etc.    Co.,    22    Colo.    513,  tello  v.  Bass  (1908),  15  Idaho,  1,  96 

55   Am.   St.   Eep.   149,   45   Pae.   444;  Pae.  120. 

Larimer  etc.  Co.  •?.  Cache  La  Poudre  10  Conley  v.  Dyer,  43  Colo.  22,  95 

etc.   Co.,   8   Colo.   App.   237,   45   Pae.  Pae.  304. 

525 ;  Town  of  Sterling  v.  Pawnee  etc.  H  Wheeler  v.  Northern  Irr.  Co.,  10 

Co.,    42    Colo.    421,    94    Pae.   341,    15  Colo.    582,   3    Am.    St.   Eep.    603,    17 

L.  E.  A.,  N.  S.,  238;  Conley  v.  Dyer,  Pae.  487.     See  the  opinion  contra  in 

43    Colo.    22,    95    Pae.    932;    Park   v.  Wyatt  v.  Larimer  Co.  (1892),  1  Colo. 

Park   (1909),  45  Colo.  356,  101  Pae.  App.  480,  29  Pae.  906   (overruled  in 

406.  18  Colo.  298,  36  Am.  St.  Eep.  280,  33 

9  "The    final   step,  and    the   most  Pae.  144). 

essential  element,  to  constitute  a  com-  12  Infra,  sec.  1338. 


§396  Ch.  17.     HOW  APPROPRIATION   IS  MADE.      (3ded.)  431 

creation  of  the  right  as  in  Colorado,  yet  the  opposite  conclusion 
is  reached  regarding  the  position  of  the  water  title;  the  canal 
company  13  the  one  held  to  be  the  appropriator  even  though  it 
does  not  personally  make  the  use.  Thus,  in  Oregon 13  Judge 
Wolverton  quotes  statements  in  the  authorities  based  upon  posses- 
sory origin  that  only  the  intent  to  apply  to  a  beneficial  use  is  the 
element  of  creation  of  appropriation  (the  application  to  use  being 
matter  subsequent  to  the  creation  of  the  right)  and  other  state- 
ments in  Colorado  authorities  that  the  consummation  of  the  appli- 
cation to  beneficial  use  is  the  element ;  but  when  it  comes  to  actual 
decision  in  the  case,  decides  in  accordance  with  the  former  (the 
original  or  possessory)  view,  and  holds  that  a  distributing  company 
is  the  appropriator,  because  it  has  the  intent  to  accomplish  a  bene- 
ficial use  whether  immediate  or  through  the  mediation  of  others 
(whereas  the  Colorado  cases  hold  the  consumer  to  be  the  appro- 
priator because  he  alone  consummates  the  actual  use).  The  court 
said:  "The  water  of  a  public  stream  is  eventually  applied  to  a 
beneficial  use,  and  the  general  purposes  of  such  appropriations  ac- 
complished." And  adds  that  beneficial  use  is  enforced  under  this 
theory  not  as  a  condition  precedent,  but  by  the  penalty  of  suffering 
an  abandonment  or  forfeiture  for  waste.14  And  even  in  Colorado 
the  distributor  is  regarded  as  the  appropriator  when  it  comes  to 
adjudicating  rights  upon  streams ;  that  is,  decrees  are  rendered  only 
between  the  canals  leading  from  the  stream  itself,  and  not  between 
consumers.15 

Again,  in  Colorado,  though  actual  use  is  laid  down  as  the  essen- 
tial prerequisite,  yet  the  possessory  principle  is  followed  regarding 
change  of  use,  and  the  right  is  held  not  to  inhere  inseparably  in  the 

13  Nevada  D.  Co.  v.  Bennett,  30  Or.  the  appropriator."     Likewise   Nevada 

59,  60  Am.  St.  Rep.  777,  45  Pac.  472.  D.  Co.  v.  Canyon  etc.  Co.   (Or.),  114 

H  In  a  later  Oregon  case  it  is  said :  Pac.   86,   holding   the  user   to   be  the 

"Whatever  may  be  the  rule  elsewhere,  agent  of  the  company  to  make  the  use 

this  question  is  set  at  rest  in  the  very  (whereas  the  Colorado  cases   say  the 

clear  and  able  opinion  by  Mr.  Justice  canal  company  is,  on  the  contrary,  the 

Wolverton,  in  Nevada    Ditch    Co.   v.  agent  of  the  consumers  to  make  the 

Bennett,  30  Or.  59,  60  Am.  St.  Rep.  diversion).     And  yet,  in  Oregon,  per- 

777,  45  Pac.  472,  where  this  feature  mits  under  the  act  of  1909  will  not  be 

was  prominent  among  the  many  points  issued  for  selling  water,  but  only  for 

relied  upon.     It  was  there  held  that  storage.     See,     also,     Cookinham     v. 

a  bona  fide  intention    to    devote  the  Lewis  (Or.),  114  Pac.  88. 
water  to   a   useful   purpose,   which  is  See,     also,     Sowards     v.     Meagher 

required    of     an    appropriation,    may  (Utah,  1910),  108  Pac.  1113;  Leavitt 

comprehend  the  use  to  be  made  by  or  v.  Lassen  Irr.  Co.,   157  Cal.   82,   106 

through  other  persons  and  upon  lands  Pac.  404. 
and   possessions  other  than   those  of          15  Infra,  sec.  1229. 


432   (3d  ed.)     Pt.  III.     THE  LAW  OF  PRIOR  APPROPRIATION.         §  397 

specific  use  made ;  and  likewise  it  is  held,  as  quoted  in  the  opening 
sections  of  this  chapter,  that  an  appropriation  may  be  made  by  one 
who  owns  no  land  of  his  own.  So,  also,  former  Colorado  decrees 
were  measured  by  capacity  of  ditch,  leaving  nonuse  to  operate  by 
abandonment  (though  recent  rulings  read  the  qualification  of 
beneficial  use  into  them  as  a. condition  precedent  to  the  right). 

In  appropriations  for  future  use  (which  are  generally  upheld  if 
bona  fide],  also,  this  divergence  of  views  will  probably  cause  diffi- 
culty. The  original  theory,  considering  the  appropriation  complete 
on  completion  of  the  construction  work  and  diversion  (the  taking 
of  possession  of  the  water)  necessitates  the  enforcement  of  the  doc- 
trine of  relation  from  that  time,  whereas,  when  the  acquisition 
of  the  right  is  delayed  until  actual  application,  it  will  keep  open 
and  uncertain  for  years  (under  frequent  decisions)  the  doubt 
whether  an  appropriation  exists,  as  some  States  allow  years  to  pass 
(if  a  reasonable  time)  before  the  application  need  be  made; 16  and 
after  those  years  of  uncertainty,  will  cut  off  the  intervening  rights 
of  other  claimants.17 

These  matters  are  mentioned  to  bring  out  that  while  actual  ap- 
plication to  the  use  intended  is  generally  to-day  stated  as  an 
element  in  creation  of  the  right  as  well  as  the  bona  fide  intention, 
yet  it  is  a  departure  now  going  on  from  the  possessory  origin  of 
the  law,  not  yet  complete,  and  consequently  leaving  inconsistent 
decisions. 

In  view  of  the  California  code  section  above  quoted,  it  is  diffi- 
cult to  see  how  it  can  be  denied  that  the  possessory  test  of  comple- 
tion of  the  right  remains  in  force  in  California  and  that  diversion 
(with  a  bona  fide  intention)  there  completes  the  right,  the  question 
of  consummation  of  the  use  operating  as  matter  subsequent,  by 
abandonment  or  forfeiture  of  possession. 

The  question  of  actual  application  of  the  water  will  be  matter 
for  consideration  again,  in  discussing  the  amount  an  appropriator 
can  divert  for  future  needs,  without  any  present  application  there- 
of.18 

(3d  ed.) 

§  397.  Federal  Requirements. — In  California,  the  law  of  ap- 
propriation is  confined  to  waters  upon  the  public  lands,  and  the 

is  Infra,  sec.  483,  future  needs.  18  Infra,  sec.  483. 

17  See  Seaweard  v.  Pacific  etc.  Co., 
49  Or.  157,  88  Pac.  963. 


§398  Ch.  17.     HOW  APPEOPRIATION   IS  MADE.      (3d  ed.)  433 

foregoing  rules  grew  up  under  the  permission  of  the  act  of  Con- 
gress of  1866. 19  That  act  is  still  upon  the  statute  books.  But  the 
Federal  departments  are  building  a  new  system  based  upon  rights 
of  way,  in  numerous  matters  affecting  the  foregoing,  especially 
within  the  forest  reserves.  In  California,  nearly  all  the  remaining 
streams  on  public  land  are  in  whole  or  part  within  forest  reserves, 
and  section  1422  of  the  California  Civil  Code  requires  that  a  permit 
from  the  Forest  Service  be  obtained.  Also  on  unreserved  public 
land  the  new  Federal  System  governing  rights  of  way  is  of  great 
importance.  Consequently,  as  the  law  of  appropriation  in  Cali- 
fornia applies  only  to  waters  on  public  lands,  and  as  settlement  and 
other  private  acquisition  have  taken  out  of  the  public  domain  the 
greater  portion  of  the  agricultural  lands  in  California,  and  as  the 
remaining  public  land  along  streams  is  subject  to  the  new  Federal 
System  governing  rights  of  way,  it  seems  that  the  method  of  ac- 
quiring water-rights  described  in  this  chapter  is  of  rapidly  diminish- 
ing importance  in  California. 

Regarding  the  Federal  requirements,  reference  is  made  to  a  later 
chapter.20 

(3d  ed.) 

§  398.  Recapitulation. — To  sum  up:  The  doctrine  of  appro- 
priation in  California  applies  only  to  water  on  public  land.  An 
appropriation  may  be  made  under  the  California  method  (the 
original  method)  by  actual  diversion  of  the  water  for  a  beneficial 
purpose  without  more,  and  is  good  against  all  claimants  (appro- 
priators  or  riparian  patentees  in  California)  who  seek  to  initiate  a 
title  subsequent  to  the  date  of  diversion ;  but  no  claim  can  be  made 
to  the  benefit  of  the  doctrine  of  relation  so  as  to  found  any  right 
antecedent  to  the  diversion. 

To  secure  the  benefit  of  the  doctrine  of  relation,  there  must  be 
posted  a  notice  of  appropriation  (which  must  be  recorded),  there 
must  be  a  bona  fide  intention  to  use  the  water  for  a  beneficial  pur- 
pose, there  must  be  diligence  in  the  construction  work,  and  the 
work  must  be  completed  (that  is,  the  waters  conducted  to  the  place 
of  intended  use).  These  requisites,  as  at  present  prevailing  under 
the  California  method,  are  substantially  the  same  as  those  estab- 
lished in  the  early  days  by  the  customs  of  miners  and  decisions  of 

l»  See  historical  chapters.  20  Infra,  sec.  430  et  seq. 

Water  Bights — 28 


434   (3d  ed.)     Pt.  III.     THE  LAW  OF  PBIOR  APPROPRIATION.         §  398 

the  courts.  They  are  founded  upon  the  proposition  that  the  right 
to  water  by  appropriation  was  a  member  of  the  large  class  of  posses- 
sory rights  on  the  public  domain  (and  in  California  still  is  confined 
to  the  public  domain),  and  these  requisites  are  the  equivalent  of 
taking  possession.  Actual  application  of  the  water  is  not  a  pre- 
requisite, under  the  orginal  theory,  to  the  vesting  of  the  right. 
The  right  is  complete  when  possession  has  been  taken.  The  water 
must  be  actually  applied  to  a  beneficial  use  within  a  reasonable 
time  or  the  right  will  cease  by  abandonment ;  but  application  is  not 
a  prerequisite  to  invoking  the  doctrine  of  relation  under  the  orginal 
theory.  But  in  most  States  actual  use  has  been  added  as  itself 
an  element  in  the  creation  of  the  right,  as  well  as  the  bona  fide 
intention;  that  is,  the  intention  must  be  actually  consummated  by 
use  within  a  reasonable  time  before  an  appropriation  has  any  exist- 
ence as  such. 

When  the  requisites  stated  have  been  completed,  the  right  to  the 
water  relates  back  to  the  date  of  posting  notice,  in  order  to  deter- 
mine priority  between  conflicting  claims,  and  gives  the  appropriator 
a  better  right  than  all  claimants  subsequent  to  the  notice.  It  does 
not,  however,  carry  back  any  right  to  complain  of  intervening  use 
by  others  in  the  meantime — such  temporary  use  by  others  is  al- 
lowed ;  it  establishes  priority  against  them  only  for  future  purposes. 
If  the  requisites  stated  have  not  -been  strictly  complied  with,  all 
benefit  of  the  doctrine  of  relation  is  forfeited,  and  the  claimant 
will  have  no  right  against  those  who  actually  divert  the  wrater  before 
he  does,  and  will  have  only  a  temporary  right  against  those  who 
have  posted  a  notice  and  are  working  diligently ;  a  temporary  right 
which  ceases  when  the  others  have  completed  their  construction 
work  and  are  themselves  in  a  position  to  divert  and  use  the  water. 

If  the  appropriation  is  within  (or  must  cross)  a  forest  reserve  or 
other  withdrawn  public  land,  compliance  with  rules  and  regulations 
of  Federal  departments  is  required. 

§§  399-407.     (Blank  numbers.) 


S  408     Oh.  18.  HOW  APPROPRIATED— STATE  CODES.  (3d  ed.)  435 


CHAPTER  18. 

HOW  AN    APPROPRIATION    IS    MADE— UNDER    STATE 
WATER  CODES. 

§  408.  The  Wyoming  method. 

§  409.  Authority  of  State  Engineer. 

§  410.  Vested  rights  protected. 

§  411.  Exclusiveness  of  the  statutory  method. 

§  412.  Application  for  permit. 

§  413.  Fees  and  royalties. 

5  414.  Examination  of  application  and  issuance  of  permit. 

§  415.  Eejection  of  applications. 

§  416.  Same. 

§  417.  Nature  of  a  permit. 

§  418.  Prosecution  of  the  work. 

§  419.  Cancellation  of  permits  for  failure  of  work. 

§  420.  Issuance  of  certificate  of  appropriation. 

§  421.  Date  of  right. 

§  422.  California  Water-power  Act  of  1911. 

§  423.  Federal  requirements.  • 

§§  424-429.     (Blank  numbers.) 

(3d  ed.) 

§  408.  The  Wyoming  Method; — One  of  the  essential  features 
of  the  new  legislation  is  the  adoption  of  a  comprehensive  method 
of  making  appropriations  hereafter.  The  statutes  in  this  respec,t 
are  all  much  alike,  though  varying  in  detail.  This  method  is  to-day 
enacted  in  Idaho,  Nebraska,  Nevada,  New  Mexico,  North  Dakota, 
Oklahoma,  Oregon,  South  Dakota,  Utah,  and  Wyoming,  and  to 
some  extent  in  Colorado.  (It  is  not  in  force  in  California,  Mon- 
tana or  Washington,  except  for  the  1911  Water-power  Act  in  Cali- 
fornia, set  forth  at  the  end  of  this  chapter.) 

This  method  arose  in  Wyoming,1  and  is,  with  the  administrative 
law  centering  about  the  office  of  the  State  Engineer,  called  "the 
Wyoming  system."  It  is  based  on  the  original  principles  set  forth 
in  the  preceding  chapter,  merely  adapting  them  to  a  methodical 
system  of  filings  and  records.  In  the  main,  the  essentials  of  this 
method  consist  in  (1)  an  application  for  a  permit;  (2)  an  examina- 
tion thereof  and  issuance  of  permit;  (3)  provisions  governing  the 
prosecution  of  the  work;  (4)  issuance  of  a  certificate  of  appro- 
priation on  completion  of  the  work;  (5)  numbering  of  the  certi- 

1  See  Pool  v.  Utah  etc.  Co.,  36  Utah,  508,  105  Pac.  289. 


436   (3d  ed.)     Pt.  III.     THE  LAW  OF  PRIOR  APPROPRIATION.         §  409 

ficates  successively  according  to  the  date  of  the  application  for 
permit,  and  dating  priority  by  relation  to  that  date.  In  some 
States  the  matter  is  carried  one  step  further,  providing  for  the 
actual  application  and  beneficial  use  of  the  water  before  the  final 
certificate  issues.  This  method  must  be  followed  whatever  the 
purpose  of  the  appropriation — whether  for  irrigation  or  other 
uses. 

The  method'  prescribed  sometimes  applies  likewise  to  changing 
or  enlarging  an  appropriation,  or  else  a  similar  method  is  specially 
provided;  while  in  Colorado  a  change  of  point  of  diversion  must 
be  made  in  a  method  similar  to  that  provided  for  determination 
of  priorities.2 

Whether  necessary  for  an  irrigator  to  own  or  locate  land  under 
these  statutes  before  appropriating  has  been  discussed  elsewhere.3 

Reference  should  also  be  made  to  later  chapters  upon  Adminis- 
trative Systems  and  Adjudication  of  Rights.4 

(3d  ed.) 

§  409.  Authority  of  State  Engineer. — These  statutes  give  the 
State  Engineer  a  general  authority  over  the  making  of  appropria- 
tions (except  in  Colorado  where  the  office  is  merely  to  receive 
and  keep  filings,  without  power  of  rejection).5  As  between 
private  parties  the  State  legislature  has  power  to  confer  this 
authority  upon  the  State  Engineer.6  This  authority  exists  over 
riparian  owners  as  well  as  others  in  States  rejecting  riparian 
rights.7  What  will  be  their  effect  upon  riparian  owners  in  States 
upholding  riparian  rights  is  elsewhere  considered.8 

As  considered  in  another  place,  the  power  of  the  State  Engi- 
neer is  held  to  be  ministerial,  and  hence  the  statutes  are  not 
unconstitutional  as  conferring  upon  him  judicial  powers ;  and  like- 
wise his  acts  may  be  contested  in  court  like  those  of  any  adminis- 

2  Infra,  e.  22,  change  of  mode  of  1889,  p.  372,  sec.  3,  requiring  approval 
enjoyment.  of  State  Engineer  for  dams  over  ten 

3  Supra,  sec.   282;   infra,  sec.  509.  feet  high. 

4  Infra,  Part  VI.  6  Idaho     etc.     Co.     v.     Stephenson 

5  The  first   Colorado   act  for  maps  (Idaho,    1909),    16    Idaho,    418,    101 
and  filings  was  held  unconstitutional  Pac.  821. 

because   of  a   defective  title.     Lamar  As  to  how  far  this  State  legislation 

etc.  Co.  v.  Amity  etc.  Co.,  26  Colo.  370,  will   prevail   on   public    lands    should 

77   Am.   St.   Rep.   261,   38   Pac.   600;  Congress  hereafter  pass  statutes  upon 

Rio   Grande    etc.    Co.   v.    Prairie   etc.  the  matter,  reference  is  made  to  a  pre- 

Co.,  27  Colo.  225,  60  Pac.  726;  Beaver  ceding  chapter.     Supra,  sees.  151-187. 

etc.  Co.  v.  St.  Vrain  etc.  Co.,  6  Colo.  7  Idaho   etc.  Co.  v.   Stephenson,  16 

App.    130,   40    Pac.    1066.     See   Colo.  Idaho,  418,  101  Pac.  821. 

Rev.    Stats.    1908,    see.    3323,    laws  8  Supra,  see.  126. 


§§410,411    Ch.  18.    HOW  APPROPRIATED— STATE  CODES.     (3ded.)  437 

trative  officer  acting  in  excess  of  authority.  Not  only  may  a 
party  aggrieved  by  his  decision  appeal  therefrom  in  the  method 
provided  by  the  statute,  but  he  may  be  heard  in  court  in  the  other 
usual  ways,  such  as  by  injunction  against  the  permit  holder.  The 
action  of  the  State  Engineer  is  held  not  to  control  the  courts 
further  than  the  acts  of  other  administrative  officers.  Reference 
in  this  regard  is  made  to  a  later  chapter.9 

(3d  ed.) 

§  410.    Vested  Rights  Protected.— A  permit  from  the   State 

Engineer  is  of  no  avail  against  existing  owners  if  it  infringes 
their  rights.  Holders  of  such  infringing  permits  may  be 
enjoined;  the  permit  grants  nothing  as  to  them.  In  this  regard, 
also,  reference  is  made  to  a  later  chapter,  where  the  matter  is 
considered  in  chief  and  authorities  cited.10 

(3d  ed.) 

§  411.    Exclusiveness  of  the  Statutory  Method. — Under  the 

original  method  of  appropriating,  discussed  in  the  last  chapter, 
the  statutory  method  by  posting  notice  is  not  exclusive ;  an  appro- 
priation by  actual  diversion  without  notice  may  be  as  valid  as 
one  with  notice.  Will  this  principle  be  applied  under  the  new 
water-code  method? 

The  statutes  «for  applications  and  filings  have  been  held  in 
Colorado  n  not  to  apply  to  a  ditch  taking  water  from  an  exist- 
ing ditch ; 12  nor  to  apply  between  rivals  neither  of  whom  has 
made  filings,  holding  it  no  defense  to  a  wrongdoer  (at  least  one 
diverting  the  water  in  another  State)  that  plaintiff  has  not  com- 
plied with  the  laws  for  filings  and  other  matters,  so  long  as 
plaintiff  was  in  possession  of  the  water  for  beneficial  use.  Pos- 
session is  enough  against  a  wrongdoer  showing  no  better  right.13 
In  the  Federal  court  for  Montana,  construing  Wyoming  law, 
the  court  also  applies  the  rule  of  appropriation  by  actual  diver- 
sion, though  Wyoming  to-day  ha's  these  statutes  varying  from 
the  California  method,  which  seem  to  negative  this.  Judge 
Whitson  supports  appropriation  by  actual  diversion  on  prin- 
ciple, saying  that  actual  diversion  is  as  much  notice  to  later 

9  See  infra,  Part  VI,  where  the  mat-  12  Water  Supply  Co.  y.  Larimer  etc. 

ter  is  considered  in  chief  and  author-  Co.,   24    Colo.    322,    51  'Pac.    496,    46 

ities  cited.     See   especially  sec.   1192  L.  R.  A.  322. 

et  seq.  13  Hoge  v.  Eaton,  135  Fed.  411,  and 

Infra    Part   VI     esoeciallv   sec        cf'    Morris    v'    Bean'    146    Fed"    425' 
'  '        P  affirmed  in  159  Fed.  651.  86  C.  C.  A. 

519;  Denver  Co.  v.  Dotson  (Colo.),  20 
"  Under  sec.  2265,  M.  A.  S.  Colo.  304,  38  Pac.  322. 


438   (3d  ed.)     Pt.  III.     THE  LAW  OF  PRIOR  APPROPRIATION.         §  411 

comers  as  is  the  statutory  notice  or  the  application  for  permit.14 
In  Idaho  and  Utah  it  has  been  left  open  "whether  the  right  to 
appropriate  water  from  the  streams  of  this  State  can  be  acquired 
in  any  method  other  than  that  pointed  out  by  the  statute. ' ' 15 

These  holdings  seem  to  follow  in  the  line  of  cases  cited  in  the 
preceding  chapter  upholding  appropriations  by  actual  diversion. 
It  is  probable  that  the  new  statutes  intended  to  prevent  that. 
The  older  statutes,  based  on  the  California  Civil  Code,  were 
merely  to  regulate  the  doctrine  of  relation,  while  the  new  stat- 
utes described  in  this  chapter  are  not  limited  to  that  purpose, 
and  seem  to  aim  at  a  comprehensive  and  exclusive  method  of 
appropriating.  But  it  would  seem  necessarily,  upon  general 
principles  of  law,  that  between  two  parties,  neither  of  whom  has 
a  permit,  prior  possession  must  prevail,  at  least  until  one  or  the 
other  is  approved  by  the  State  Engineer.16  That,  also,  was  the 
basic  principle  upon  which  the  law  of  appropriation  originally 
arose  upon  public  lands,  where  neither  party  had  a  patent  from 
the  United  States.17  These  new  statutes,  consequently,  may.  pos- 
sibly come  to  be  construed  in  conformity  with  the  old  decisions, 
so  that  the  new  method  of  appropriating  will  differ  from  the 
original  one  in  form  only,  and  not  in  substance. 

Other  exceptions  are  that  the  statutes  requiring  permit  do  not 
aPply  to  rights  initiated  (though  not  completed)  before  the  acts 
were  passed,  but  such  rights  are  governed  by  the  law  at  the  time 
of  their  initiation ; 18  nor  do  they,  in  South  Dakota,  apply  to 
"dry  draws"  flowing  less  than  twenty  miner's  inches,  as  to  which 
the  old  method  of  posting  and  recording  notice  remains ; 19  nor 
do  they  apply  in  New  Mexico  to  water-tanks  or  wells  for  water- 
ing stock.20  And  it  has  been  held  in  general  terms  that  they 
apply  only  to  watercourses  and  not  to  diffused  surface  or  percolat- 

14  Morris    v.   Bean     (Mont.),     146       permit  a  crime.     Then,  being  in  pari 
Fed.  425,  affirmed  in  159  Fed.  651,  86'      delicto,  neither  could  get  relief. 

C.  C.  A.  519,  affd.  in  -   -  U.  S. ,  17  Supra,  sec.  82  et  seq. 

May  29   1911      Followed  in  Nielsen  v.  18  g       Lockwood    v.    Freeman,    15 

Parker   (Idaho,  1911),  115  Pac.  488.  gg  ^      The  » 

But  statutes  usually  say:  Rights  uteg  (hems'elves  usuall  go  provide; 
shall  be  acquired  under  this  act  and  g_  utah  L&wg  ^J  c  *  g4 
not  otherwise";  and  fees  for  permit  «  >  Qr  1Q  >  216,  sec.  70 

would  otherwise  be  lost  by  the  State.  ,  ,   '_ 

15  Speer  v.   Stephenson   (1909),   16 

Idaho,  707,   102   Pac.  365.     See  Sow-  19  S.  D.  Stats.  1907,  c.  180,  sec.  31, 

ards   v.    Meagher    (Utah,    1910),    108  Stats.    1911     c.   263,   p.   468.      So     in 

Pac    1113  Idaho,  of  lakes  on  private  land  under 

W  infra,   sec.    626    et   seq.;    except  five  acres.    Stats.  1911,  c.  230. 

where  statute  makes  diversion  without  2<>  N.  M.  Stats.  1909,  p.  149. 


§412          Ch.  18.     HOW  APPROPRIATED— STATE   CODES.     (3d  ed.)  439 

ing  water ;  21  and  that  the  State  Engineer  has  no  control  over  waters 
until  they  enter  his  State.21* 

(M  ed.) 

§  412.     Application  for  Permit. — In  all  these  States  application 

in  duplicate  must  be  filed  with  the  authorities.  In  all  but  one 
the  application  must  be  made  before  beginning  any  work.  The 
exception  is  Colorado,  where  it  must  be  filed  within  sixty  days 
after  beginning.  The  application  is  filed  with  the  State  Engineer. 
The  form  for  these  applications  is  usually  furnished  by  the  State 
Engineer,  and  in  most  of  the  States  must  be  sworn  to.  It  con- 
tains a  statement  of  the  plan  of  the  work,  the  details  of  descrip- 
tion required  varying  in  the  different  States.  Duplicate  maps 
must  accompany  the  application  in  Colorado,22  Idaho,  and 
Wyoming,  and  in  most  of  these  States.  In  four,  however,  the 
filing  of  maps  is  postponed  until  after  the  approval  of  the  applica- 
tion.23 If  applicant  is  a  corporation,  the  application  must  con- 
tain matters  in  description  of  the  corporation  also.  In  all,  great 
discretion  is  allowed  the  State  Engineer  in  calling  for  additional 
information.  It  is  in  all  the  duty  of  the  State  Engineer  (Board 
of  Irrigation  in  Nebraska)  to  examine  the  application.  For  the 
statutory  provisions,  reference  is  made  to  Part  VIII  of  this  book.24 

Special  provisions  usually  appear  for  large  dams  and  reservoirs, 
some  examples  of  which  are  given  in  the  note;  and  usually  the 
statutes  go  into  considerable  detail.25 

A  permit  is  required  of  all  appropriators  (even  of  riparian 
owners,  in  States  rejecting  riparian  rights),  and  even  if  a 
power-house  is  put  in  the  stream  itself  and  involves  no  other 
diversion.  In  order  to  apply  the  water  sought  to  be  appropriated 
to  a  beneficial  use,  it  was  held  necessary  to  change  it  from  the 
way  that  it  would  naturally  flow  down  said  stream,  and  that  the 
act  of  the  legislature  was  intended  to  and  does  cover  all  such 

21  Vanderwork  v.  Hewes    (N.  M.),  24  Infra,  Part  VIII. 

110  Pac.  567.  25  Colorado. — Special  provisions  for 

A   special   statute   in   Nebraska   re-  reservoirs  having  a   capacity  of  over 

quires    permit   of   State    Engineer   in  seventy-five    million   cubic    feet,    etc., 

drainage  of  lakes.     Neb.  Stats.  1909,  are  contained  in  3  M.  A.  S.,  1905  ed., 

p.  525.  2270a   et   seq.,   2286d   et   seq.,   M.   A. 

m     i           -n              /-vr   •»«•  \    11  A  S.,    2270.     Dams     over    ten    feet    in 

Pac    27S    'LI'  ^^34^'  "a        hei^ht  re<*uire  aPProval  of  State  En- 
,e  supra,  sec.  6  *q.       gineer     Rey    gtatg    igQ^  ge(j    3 

2  The  duplicate  must  be  recorded.       Laws  1889)  p    372>  sec    3 
The  same  applies  to  enlargements.  Nebraska.— Dams  over  ten  feet  high 

23  Infra,  sec.  418.  require     approval     of     State     board. 


440   (3ded.)     Pt.  III.     THE  LAW  OF  PEIOE  APPROPRIATION.         §412 


cases.1  "Whenever  its  natural  condition  is  changed,  and  it  is 
taken  from  its  natural  flow  in  the  stream  and  applied  to  a  beneficial 
use,  the  law  steps  in  and  provides  the  procedure  and  the  things 
to  be  done  and  the  fees  to  be  paid  in  perfecting  its  appropria- 
tion."2 

The  statutes  usually  expressly  declare  that  making  filings  of 
maps  or  applications  does  not  alone  constitute  an  appropriation 
(and  beginning  work  under  them  is  made  criminal),  if  not 
approved  by  the  proper  officials,  nor  if  not  followed,  when 
approved,  by  the  succeeding  requisites,  prosecution  of  the  work, 
and  actual  completion  as  the  statutes  may  require.3  This  is  in 
accord  with  the  rule  under  the  original  method  of  appropriation 
set  forth  in  the  previous  chapter.4 

Forms  for  applications  and  filings  are*  given  at  the  end  of  this 
book. 

Concerning  the  practical  operation  of  applications  and  filings, 
the  following  is  quoted  from  Bulletin  168  of  the  Office  of  Exper- 
iment Stations  of  the  United  States  Department  of  Agriculture: 

Idaho. — "Most  of  the  applications  made  have  to  be  returned  to 
the  applicants  for  correction,  and  as  a  rule  they  are  corrected  in 
accordance  with  the  suggestions  of  the  engineer  and  returned. 
Many  applicants  employ  attorneys  to  make  out  their  papers,  but 


Comp.  Stats.  1903,  sees.  6447,  6464; 
Cobbey's  Ann.  Stats.,  sec.  6792. 

North  Dakota.— Stats.  1905,  c.  34, 
sec.  19,  concerning  dams  over  thirty 
feet  in  height. 

Utah. — Stats.  1905,  c.  108.  A  special 
provision  covers  the  building  of  dams 
(in  sections  3  to  10).  Duplicate 
plans,  etc.,  for  any  dam  over  five 
feet  in  height  across  the  natural  chan- 
nel of  a  running  stream,  or  any  other 
dam  over  ten  feet,  shall  be  submitted 
to  the  State  Engineer  for  his  ap- 
proval; one  copy  to  be  returned  with 
his  approval  or  disapproval.  Failure 
of  persons  to  comply  with  this  re- 
quirement is  a  misdemeanor.  The 
work  must  be  done  under  the  super- 
vision of  the  State  Engineer. 

Wyoming. — Concerning  dams  over 
five  feet  in  height,  -Rev.  Stats.,  931, 
and  Stats.  1903,  p.  74,  c.  69. 

l  Idaho  etc.  Co.  v.  Stephenson 
(1909),  16  Idaho,  418,  101  Pae.  821; 


Speer  v.  Stephenson  (1909),  16  Idaho, 
707,   102  Pac.  365.    , 

2  Idaho     etc.     Co.     v.     Stephenson 
(1909),  16  Idaho,  418,  101  Pac.  821. 

3  Sowards  v.  Meagher  (Utah,  1910), 
108     Pac.     1113.     Consult,   generally, 
Jarvis  v.  State  Bank,  22  Colo.  309,  55 
Am.  St.  Rep.  129,  45  Pac.  505 ;  United 
States  v.  Rickey,  164  Fed.  496;  Ras- 
mussen  v.  Blust,  83  Neb.  678,  120  N. 
W.  184;.Conley  v.  Dyer,  43  Colo.  22, 
95  Pac.  304;  Whalon  v.  North  Platte 
etc.  Co.  (Wyo.),  71  Pac.  995;  Pool  v. 
Utah  etc.  Co.,  36  Utah,  508,  105  Pac. 
289. 

4  "We  think  the  filing  of  a  written 
application  with  the   State  Engineer, 
as  required  by  the  statute,  is  but  de- 
claring, or  the  giving  of  a  notic'e  of, 
an  intention  to  appropriate  unappro- 
priated    public    water."     Sowards    v. 
Meagher  (Utah,  1910),  108  Pac.  1113. 


§  413          Ch.  18.     HOW  APPBOPRIATED— STATE   CODES.     (3d  ed.)  441 

as  a  rule  these  do  not  meet  the  requirements  any  better  than  the 
others." 

Wyoming. — "Although  a  blank  on  which  to  make  this  application 
is  furnished  by  the  office,  nearly  one-half  of  those  received  have 
to  be  returned  for  correction Parties,  who  have  no  well- 
defined  idea  of  constructing  ditches  file  applications  for  permits 

simply  because  it  costs  nothing The  tendency  of  recording 

speculative  filings  is  only  one  of  the  evils.  The  more  aggravating 
one  is  the  carelessness  with  which  many  of  the  statements  are  pre- 
pared." 

(3d  ed.) 

§  413.    Fees   and   Royalties. — Filing   fees   must   be  paid   tho 

State  Engineer  by  the  applicant  according  to  the  schedule  con- 
tained in  the  statutes.5  In  an  Idaho  case  the  plaintiff  constructed 
a  dam  across  Snake  River  at  a  point  near  where  its  power-house 
is  situated,  placed  its  power-house  on  a  rock  foundation  or  small 
island  in  the  channel  of  the  river,  and  placed  its  penstock  in  the 
river,  and  conducted  the  water  from  the  dam  to  its  water-wheels. 
It  was  held  that  plaintiff  is  required  to  pay  the  same  fees  it 
would  have  to  pay  if  it  had  diverted  the  water  frpm  its  dam  by 
a  ditch  or  flume  and  carried  it  for  a  distance  on  the  bank  of  the 
river  and  then  turned  it  into  its  penstock,  and  through  that  on 
to  its  water-wheels  and  back  into  the  river;  that  the  legislature 
did  not  intend  to  exempt  from  the  operations  of  said  act  the  per- 
son or  corporation  or  riparian  owner  that  placed  its  power-house 
in  the  bed  of  the  stream  itself.6  In  Utah  a  statute  exempts  the 
United  States  Reclamation  Service  from  payment  of  fees. 

The  Oregon  Statute  of  1909 7  contains  the  first  State  require- 
ment of  payment  in  the  nature  of  a  license  tax  or  royalty.8  It 
appears  that  the  Oregon  State  Engineer  requires  a  deposit  of 
these  fees  in  advance,  accompanying  the  application  for  a  permit.9 

5  Infra,  Part  VIII,  "Statutes."  5tf  far  100-1,000  acres. 

6  Idaho      etc.     Co.     v.     Stephenson  1^  for  1,000  acres  and  over. 
(1909),  16  Idaho,  418,  101  Pac.  821.             p  .      schedule  is- 

7  Given   in   the   part   of   this   book 
containing  statutes,  infra,  Part  VIII. 

Graduated   fees   based   upon   capacity  l*v  for  100-1,000  II.  P. 

or  size  of  the  works  now  exist  in  some  5v  f°r  1,000-2,000  H.  P. 

other  States.     E.  g.,  Utah  Stats.  1911,  2?  for  2>00'    H-  p-  an<J  over. 

c.  3,  p.  2.  The   fees   are   payable   in   advance, 

8  The   Oregon   schedule   enacted   in  -when  permit  is  applied  for,  the  horse- 
Statutes  of  1909,  chapter  216,  section  power  being  figured  theoretically. 

17,  is,  for  irrigation :  9  See  Bulletin  209,  Office  of  Experi- 

15$  for  1-100  acres.  ment  Stations,  U.  S.  Dept.  Agric. 


442   (3d  ed.)     Pt.  III.     THE  LAW  OF  PRIOR  APPROPRIATION.         9  414 

In  his  report  for  1910,  the  State  Engineer  of  Oregon  recommended 
that  this  tax  on  power  development  be  repealed,  as  it  has  been 
found  to  cause  the  abandonment  of  half  the  projects  that  have 
been  undertaken  since  its  passage.  No  action  was  taken,  however, 
except  to  reduce  the  tax  upon  projects  organized  before  the  original 
statute  went  into  effect.98 

Reference  should  also  be  made  to  the  charges  of  the  United  States 
Forest  Service,  given  in  the  next  chapter. 

(3d  ed.) 

§  414.    Examination  of  Application  and  Issuance  of  Permit. — 

The  State  Engineer  is  required  to  examine  the  application,  com- 
paring it  with  the  information  and  records  of  existing  appropria- 
tions in  his  office,  and  may  usually  call  upon  the  applicant  for 
additional  information,  or  send  the  application  back  to  the 
applicant  to  be  corrected.  He  makes  a  record  in  his  office  «f 
the  date  of  filing  the  application,  and,  in  general,  of  all  papers 
filed  with  him.  In  most  States  (but  not  all),  to  give  others  a 
chance  to  protest,  the  State  Engineer,  after  examining  the  appli- 
cation, publishes  a  notice  of  the  application  in  a  newspaper  for 
thirty  days  (or.  for  four  weeks),  and  within  thirty  days  after  final 
publication,  protests  may  be  filed  with  him.10  In  some  an  appli- 
cation may  be  contested  by  one  claiming  that  it  is  not  in  the 
public  interest,  and  alleging  that  the  protestant  has  a  plan  for 
the  same  project  which  is  more  in  the  public  interest.11  If  every- 
thing is  satisfactory,  the  State  Engineer  indorses  on  the  dupli- 
cate application,  in  all  the  States,  his  approval,  and  makes  a 
record  thereof,  and  returns  it  to  the  applicant,  which  consti- 
tutes his  permit  to  proceed.  If  rejected,  it  is  returned  so 
indorsed,  with  reasons. 

Amendments  of  the  application  are  usually  allowed  at  the  dis- 
cretion of  the  State  Engineer.12 

9a  The    Oregon    Statute    of    1911,  110   Pac.   1045;    Cookinham  v.  Lewis 

chapter   236,   page   418,    taxes   power  (Or.),  114  Pac.  88. 

plants  operating  before  May  22,  1909,  12  Jn  Idaho,  in  1911,  it  was  enacted 

as  follows:  that    corrected    applications    must    be 

10(?  for  1-100  H.  P.  returned  to  the  State  Engineer  within 

5<t  for  100-1,000  H.  P.  sixty  days  or  they  will  be  treated  as 

1^  for  1,000  H.  P.  and  over.  new   applications.    Idaho   Rev.   Codes, 

Exempt  are  works  under  25  H.  P.;  .sec-    3254>    as    amd-    in    1911>    c-    64 

also  works  of  United  States,  State,  or  (House  Bill  123). 

municipalities.  In  Utah   the   State   Engineer   rules 

10  See  statutes  in  Part  VIIT,  below.  that   applications     resubmitted    after 

11  Young  v.  Hinderlider    (N.   M.),  the  expiration  of  sixty   days  will   be 


§  415          Ch.  18.     HOW  APPROPRIATED— STATE   CODES.     (3d  ed.)   443 

Upon  a  contest,  the  statutes  usually  provide  an  appeal  from 
the  decision  of  the  State  Engineer  to  court.13  But  his  decision  is 
open  to  collateral  inquiry  in  court  without  such  appeal,  it  has 
been  held,  since,  as  elsewhere  considered,14  the  proceeding  before 
the  State  Engineer  to  contest  a  permit  is  administrative  and 
not  judicial  in  its  nature.  In  one  case  the  proceeding  is  dis- 
tinguished from  actions  brought  in  the  courts  because  the  pro- 
ceeding before  the  State  Engineer  is  informal;  the  rules  of  evi- 
dence do  not  apply;  the  State  Engineer  is  authorized  to  make 
personal  examination,  and  may  be  governed  thereby;  no  injury 
to  the  petitioner  or  his  property  is  required  to  be  alleged  or 
proved;  the  action  does  not  result  in  the  issuance  of  any  writ  or 
process  known  to  the  law,  and  the  proceeding  is  held  adminis- 
trative to  aid  in  carrying  out  and  administering  the  law 
regulating  and  governing  the  appropriation  and  application 
of  water  to  a  beneficial  use,  not  judicial  in  character  or  effect. 
Consequently  this  case  held  that  under  the  Idaho  statute  requir- 
ing notice  to  be  sent  by  the  State  Engineer  to  interested  parties, 
since  the  proceeding  is  not  of  the  binding  nature  of  judicial 
proceedings,  it  is  sufficient  to  send  notices  to  the  last  post- 
office  address  which  such  parties  have  left  with  the  State 
Engineer,  and  is  sufficient  if  sent  by  registered  mail,  and  need 
not  be  sent  to  assignees  or  transferees  of  permits  when  such 
transfers  do  not  appear  on  the  State  Engineer's  records.15 

(3d  ed.) 

§  415.  Rejection  of  Applications. — An  example  of  the  pro- 
vision for  refusal  of  applications  is  the  following:  "If,  in  the 
opinion  of  the  State  Engineer,  there  is  no  unappropriated  water 

treated  as  new  applications  in  all  re-  difficulty  in  the  latter  holding  is 
spects.  See  Sess.  Laws  Utah  1907,  whether  it  would  not  open  the  con- 
sec.  36,  c.  156.  See  Poole  v.  Utah  verse  of  the  usual  question,  and  make 
etc.  Co.,  36  Utah,  508,  105  Pac.  289.  the  statute  unconstitutional  as  plac- 

In  New  Mexico,  appropriations  in-  ing  administrative  duties  upon  judicial 

itiatecl   under    the   act   of    1907   are  officers. 

granted  an  extension  of  time  by  the  14  Infra,  sees.  1192,  1194. 

Statutes  of  1909,  page  374.  15  Speer  v.   Stephenson    (1909),  16 

13  Whether  an  appeal  from  him  to  Idaho,  707,  102  Pac.  365,  saying:  "To 
court,  as  allowed  by  statute,  is  a  require  that  notice  should  be  given  to 
judicial  suit,  quaere.  So  held  in  all  assignees  or  transferees  of  the 
Waha  Co.  v.  Lewiston  Co.  (Idaho),  permit  when  no  system  is  provided  for 
158  Fed.  137.  But  in  Willey  v.  recording  the  same  or  method  pro- 
Decker,  11  Wyo.  496,  100  Am.  St.  Tided  by  which  the  assignees  or  trans- 
Rep.  939,  73  Pac.  210,  it  was  held  ferees  could  be  ascertained  would  be 
not  a  judicial  suit,  but  a  continuation  demanding  of  the  office  an  impossible 
of  the  administrative  hearing.  A  task." 


444  (3d  ed.)     Pt.  III.     THE  LAW  OF  PRIOR  APPROPRIATION.         §  415 

available,  he  shall  reject  such  application.  He  shall  decline  to 
order  the  publication  of  notice  of  any  application  which  does 
not  comply  with  the  requirements  of  the  law  and  the  rules 
and  regulations  thereunder.  He  may  also  refuse  to  consider 
or  approve  an  application  or  order  the  publication  of  notice 
thereof,  if,  in  his  opinion,  the  approval  thereof  would  be  con- 
trary to  the  public  interest. ' ' 16 

Some  States,  following  Colorado,  provide  that  the  right  to' 
appropriate  unappropriated  water  "shall  never  be  denied."17 
It  has  been  questioned  how  far  the  State  Engineer's  refusal  to 
issue  a  permit  is  binding  under  such  a  provision.18  Some  States 
provide  that  "it  shall  be  the  duty  of  the  State  Engineer  to  ap- 
prove all  applications  made  in  proper  form  which  contemplate 
the  application  of  water  to  a  beneficial  use."18a  The  Wyom- 
ing declaration  modified  this  by  providing  that  no  appropriation 
shall  be  denied  "except  when  such  denial  is  demanded  by  the 
public  interests."19  And  the  more  recent  statutes  contain  the 
general  power  of  denial  given  in  the  example  first  quoted,  in 
which  "public  interest"  is  merely  one  of  the  grounds  for 
denial.20 

Power  of  denial  on  the  ground  of  public  interest  has  recently 
been  extensively  used  by  the  Territorial  Engineer  of  New 
Mexico.  In  November,  1910,  he  rejected  twelve  applications 
(the  total  number  then  pending)  to  appropriate  upon  the  Pecos 
River,  conflicting  with  the  plans  of  the  United  States  Reclama- 
tion Service.  In  Young  v.  Hinderlider 21  an  application  for  an 
irrigation  project  financed  by  outside  capital  was  contested 
by  local  capital  which  subsequently  applied  for  the  same  project 
on  the  ground  that  it  was  more  in  the  public  interest  to  have 

18  S.  D.  Stats.  1907,  c.  180,  sec.  23.  is  not  for  the  most  beneficial  use  of 

17  Colo.  Const.,  art.  16,  sec.  6.     See  the  water.     Utah  Laws   1911,  c.   103, 

list   supra,  sees.   108,   109.     See  stat-  p.  143,  amending  Comp.  Laws  of  1907, 

utes  in  Part  VIII,  below.  sees.  1288x5  and  1288x10,,  and  amend- 

is  See  Speer  v.  Stephenson  (1909),  ing    Laws    of    1909,    c.    62.     See   Or. 

16  Idaho,  707,  102  Pac.  365.  Stats.  1911,  e.  224,  p.  404. 

iSa  E.    g.,    Idaho    Rev.    Codes,    sec.  w  Wyo.   Const.,  art.   8,  sec.  3. 
3254,  as  amd.  by  Stats.   1911,  c.   64  20  See  supra,  sec.   313. 
(House    Bill    123).     A    Utah    statute  21  N   M.,  110  Pac.  1045.     A  recent 
of  this  year  provides  that  the   State  Oregon  ease  rules  that  the  State  En- 
Engineer    must    approve    all    applica-  gineer   may   reject   as   against   public 
tions  except  where  they  will  conflict  interest,    an    irrigation    project    that 
with   existing  rights,   or  where,   after  could    be    better    handled    under    the 
submission   of   the   question   to   court,  Carey      Act.     Cookinham      v.      Lewis 
the  court  decides  that  the  application  (Or.),  114  Pac.  88. 


§415          Ch.  18.     HOW  APPROPRIATED— STATE   CODES.     (3d  ed.)  445 

the  work  owned  by  local  than  by  outside  men  and  for  other 
reasons.  The  supreme  court  of  New  Mexico  held  that  the  public 
interest  referred  to  in  the  statute  is  not  confined  to  cases  of 
menace  to  health  or  safety,  and  that  the  question  of  what  is 
the  public  interest  was  not  one  of  law,  but  of  fact  for  the  trial 
court.  The  case  is  very  interesting.  Public  interest  is  much 
a  matter  of  individual  opinion,  upon  which  philosophers  and 
statesmen  have  disagreed  from  time  immemorial.  The  State 
Engineer  had  rejected  the  first  and  approved  the  second  applica- 
tion; the  board  of  water  commissioners,  to  which  appeal  was 
taken,  reversed  him  and  upheld  the  original  application  on  the 
ground  that  it  was  first  made,  and  it  is  to  the  public  interest 
to  uphold  the  law  of  prior  appropriation  and  to  invite  and 
give  security  to  the  investment  of  outside  capital,  and  that  the 
local  applicants  were  not  financially  equal  to  the  undertaking; 
the  trial  court,  to  whom  appeal  was  then  taken,  affirmed  the 
board  of  water  commissioners;  the  supreme  court,  upon  appeal 
to  it,  held  that  it  was  a  question  of  fact  what  constituted  public 
interest,  and  considered  that  the  trial  court  had  taken  a  proper 
view  of  the  public  interest  upon  the  facts  presented,  but 
remanded  the  case  to  give  contestants  an  opportunity  to  offer 
further  evidence  in  proof  of  what  the  public  interest  really  was 
in  the  matter. 

A  late  Oregon  statute  gives  the  State  Engineer  power  to  reject 
applications  for  use  outside  the  State  if  the  outside  State  refuses 
diversions  for  use  in  Oregon ;  but  otherwise  requires  him  to  approve 
all  applications  for  use  outside  the  State.218 

The  statutes  usually  expressly  allow  appeal  to  the  courts  from 
a  State  Engineer's  rejection  of  an  application.22  As  above  noted, 
this  is  held  not  to  exclude  taking  the  question  to  court  in  the 
other  usual  ways  of  testing  the  action  of  administrative  officials. 
The  late  Utah  statute  cited  above  requires  rejections  on  the  ground 
that  the  use  applied  for  is  not  the  most  beneficial  one  possible,  to  be 
submitted  to  court  by  the  State  Engineer  in  the  first  instance,  be- 
fore the  rejection  can  take  effect,  and  the  conservation  commission 

2ia  Or.  Stats.  1911,  e.  224,  p.  404.  days  after  notice  of  rejection) ;  Utah 

22  E.  g.,  Idaho  Stats.  1903,  p.  223,  Comp.     Laws     1907,     sec.     1288x10, 

sec.  12;  X.  D.  Stats.  1905,  c.  34,  sec.  amended  in  Laws  1909,  c.  62,  p.  84; 

23;   Nev.  Stats.  1907,  p.  30,  sec.  27  Utah  Comp.  Laws  1907,  sec.  1288x14. 

(must    be     commenced    within     sixtj 


446  (3d  ed.)     Pt.  III.     THE  LAW  OF  PRICE  APPROPRIATION.         §  416 

is  to  inquire  and  report  upon  what  uses  of  streams  are  most  in 
the  public  interest.22* 

(3d  ed.) 

§  416.  Same. — Concerning  the  rejection  of  applications  in 
practice  it  is  said  in  Bulletin  168,  United  States  Department  of 
Agriculture  (published  in  1906) : 

Idaho. — "As  has  been  shown  in  the  previous  pages,  there  is  no 
provision  for  securing  a  complete  list  of  all  rights  to  water  from 
any  stream,  and  without  such  a  list  neither  the  engineer  nor  the 
applicant  can  tell  from  the  records  whether  there  is  unappropriated 
water  in  any  stream.  In  many  cases  it  will,  of  course,  be  a  matter 
of  common  knowledge  that  a  stream  is  or  is  not  fully  appropriated, 
and  there  may  be  little  danger  of  injustice  so  far  as  the  applicant 
is  concerned. ' '  23 

Nebraska. — "The  rejection  of  applications  seems  to  be  much  more 
common  in  Nebraska  than  in  the  other  States.  The  report  of  the 
secretary  for  1899  and  1900  states24  that  in  those  two  years  two 
hundred  and  ten  applications  were  allowed  and  one  hundred  and 
twenty-six  dismissed.  In  the  succeeding  two  years  seventy-four 
were  allowed  and  seventeen  dismissed.  The  right  of  the  board  to 
reject  applications  has  never  been  passed  upon  by  the  courts.  In  the 
one  case  of  appeal  from  the  secretary  this  question  was  not  passed 
upon.  This  right  has  been  denied  in  Utah  and  Idaho 25  and  in 
Wyoming  is  seldom  exercised. ' '  » 

Wyoming. — "While  the  engineer  has  authority  to  reject  an  ap- 
plication when  there  is  no  unappropriated  water  in  the  source  of 
supply  mentioned  in  the  application,  and  this  has  sometimes  been 
done,  it  is  not  the  usual  practice.  There  is  usually  some  flood  water, 
and  always  the  possibility  of  an  increased  supply  from  seepage  or 
more  economical  use  by  the  holders  of  prior  rights,  and  consequently 
permits  are  frequently  granted  when  the  records  of  the  engineer's 

office  show  little  unappropriated  water Since  the  adoption 

of  the  present  system  of  acquiring  rights  a  number  of  canals  have- 
been  built  without  complying  with  the  law  regarding  making  ap- 
plication to  the  State  Engineer. ' ' 1 

22a  Utah  Stats.  1911,  ee.  103,  137.  25  See  pages  53,  69. 

23  This  is  the  reason  usually  given  1  It    is,    however,    the    practice    in 
in  support  of  the  old  rule  for  appro-  Wyoming    to  deal  with  the  matter  by 
priation   by  actual   diversion.  sending  a  notification  to  the  applicant, 

24  Page  9.  declaring,  "The  records  of  the  State 


§416          Ch.  18.     HOW  APPROPRIATED— STATE   CODES.     (3ded.)  447 

General. — "Wyoming,  the  pioneer  State  in  providing  for  the 
public  supervision  of  the  acquirement  of  rights,  gives  the  engineer 
authority  to  reject  applications  which  are  contrary  to  public  policy. 
This  has  been  followed  by  most  of  the  States  which  have  adopted 
codes  in  recent  years.  This  provision  is  so  general  in  its  terms 
that  it  may  be  interpreted  to  mean  much  or  little.  In  Wyoming 
the  exercise  of  this  authority  has  given  him  a  great  deal  of  trouble. 
The  engineer  of  Nevada  holds  that  this  provision  gives  him  no 
authority  to  reject  applications  which  conform  to  the  general  rules 
of  the  office.  The  Utah  engineer  held  that  this  provision  gave  him 
authority  to  choose  between  possible  uses  and  refused  an  application 
for  a  use  which  in  his  opinion  was  not  for  the  best  possible  use  of 
the  water.  Appeal  was  taken  to  the  courts,  the  engineer  was  over- 
ruled in  this  matter,  and  at  the  next  session  of  the  legislature  the 
law  was  repealed.  In  the  other  States  which  have  adopted  this 
provision  the  law  is  not  effective.  It  appears,  therefore,  that  this 
law  is  either  ineffective  or  unpopular  with  both  the  engineers  and 

the  public The  flow  of  a  stream  is  not  fixed,  but  increases 

and  decreases  from  year  to  year,  the  flow  in  the  latter  part  of  the 
season  almost  universally  increasing  as  the  lands  along  its  banks 
are  irrigated,  while  the  water  requirements  of  land  under  irrigation 
have  a  tendency  to  decrease.  The  engineer  is  not,  therefore,  in  a 

Engineer's  office  show  the  waters  of  the  later  permits  cannot  interfere 
....  to  be  largely  appropriated.  with  the  earlier  rights.  I  do  not  know 
The  appropriator  under  this  permit  is  whether  other  States  have  encountered 
hereby  notified  of  this  fact  and  that  the  same  problems  we  have  here  or 
the  issuance  of  this  permit  grants  not.  Each  month  we  receive  appli- 
only  the  right  to  divert  and  use  the  cations  which  provide  for  the  recla- 
surplus  or  waste  water  of  the  stream,  mation  of  the  same  tract  of  land.  In 
and  confers  no  rights  which  will  in-  cases  of  this  kind  it  would  seem  that 
terfere  with  or  impair  the  use  of  some  public  officer  should  have  some 
water  by  prior  appropriators."  And  discretion  in  the  issuance  of  the  per- 
the  State  Engineer  of  Wyoming  takes  mit.  Under  the  law  we  can  examine 
exception  to  the  statements  contained  the  financial  standing  of  the  various 
in  the  Department  Bulletin.  In  a  applicants,  scrutinize  the  plans  sub- 
communication  to  the  author  he  says :  mitted  by  each,  and  issue  the  permit 
"Here  in  Wyoming  applications  are  which  seems  to  provide  for  the  best 
not  rejected  unless  the  plans  are  methods  of  construction,  which  we 
faulty  or  the  lands  to  be  irrigated  believe  is  in  the  interests  of  the  pub- 
conflict  with  other  permits.  On  some  lie.  This  procedure  appears  to  me 
streams  we  request  parties  to  provide  as  being  much  wiser  than  to  issue  con- 
stored  water  before  permits  are  is-  flicting  permits,  and  to  allow  the  con- 
sued,  but  we  realize  that  the  flow  of  struction  companies  to  engage  in  per- 
streams  fluctuates  throughout  the  year,  petual  warfare,  duplicating  ditches 
and  that  the  total  discharge  of  streams  and  reservoirs,  and  thus  increasing  the 
is  different  from  one  year  to  another.  price  of  water-rights."  (From  a  let- 
Applications  are,  therefore,  not  re-  ter  to  the  author  under  date  of  Au- 
jected  because  of  the  water  supply.  gust  31,  1908.) 
The  principal  reason  for  this  is  that 


448  (3d  ed.)     Pt.  III.     THE  LAW  OF  PRIOR  APPROPRIATION.         §  417 

position  to  state  that  there  is  at  any  time  no  unappropriated  water 
in  a  stream  to  which  rights  can  be  acquired." 

Since  this  was  written,  some  statutory  changes  have  been  made, 
as  already  noted. 

(3d  ed.) 

§  417.  Nature  of  a  Permit. — A  permit  is  the  equivalent  of 
the  notice  posted  under  the  original  method.  "As  a  substitute 
for  the  notice  thus  provided  for,  the  legislature  in  1903  provided 
that  a  person  or  corporation  contemplating  the  appropriation 
of  water  should  make  application  to  the  State  Engineer,  and 
receive  a  permit  from  him  to  construct  certain  works  and  appro- 
priate and  apply  the  water  to  a  beneficial  use.  The  permit  thus 
provided  for  took  the  place  of  the  posting  of  notice  as  required 
under  the  act  prior  to  1903,  and  merely  gave  the  applicant  an 
inchoate  right  which  could  ripen  into  a  legal  and  complete 
appropriation  only  upon  the  completion  of  the  works  and  the 
application  of  the  water  to  a  beneficial  use.  The  right  given 
by  the  permit  is  merely  a  contingent  right,  which  may  ripen 
into  a  complete  appropriation,  or  may  be  defeated  by  the  fail- 
ure of  the  holder  to  comply  with  the  requirements  of  the  statute. 
The  permit,  therefore,  is  not  an  appropriation  of  the  public 
waters  of  the  State.  It  is  not  real  property  under  the  statute."2 
The  court  holds:  "A  permit,  however,  is  the  consent  given  by 
the  State  to  construct  and  acquire  real  property."3 

Permits  may  be  sold  or  assigned;  and  the  purchaser  thereof 
will  succeed  to  the  rights  under  the  permit.4  The  assignment 
is  usually  required  to  be  recorded  in  the  office  of  the  State 
Engineer. 

Filings  under  an  unconstitutional  statute  are  void.5  A  veri- 
fied statement  filed  and  introduced  in  evidence  is  not  evidence 

2  Speer  v.   Stephenson    (1909),   16          8  Speer  v.  Stephenson,  supra. 
Idaho,  707,  102  Pac.  365,  citing  Rev.  4  g  Stenhenson      suvra  • 

Codes,  sec.  3056 ;   Ada  County  Farm-       ^^  ^^SSTSi  S^U 

T?V,      70^'  £armGon %"?    S^'A  Wyo.    313,    71    Pac.    995.     See,    also, 

Idaho,  793,  51  Pac.  990,  40  L.  R.  A.  TT  J,    n  *rn*ra  IQA-T    „   .    WOQ^IT 

48 ^      SPP    also     Sowards   v    Meae-her  Utah  ComP-  Laws  ld°'>  sec-  1288x1 1, 

480.      oee,    aiso,    oowarus    v.    meagner  ompn^pH  hv  TJIWSI  1QOQ    P    fi2    n    84 

(Utah,  1910),  108  Pac.  1113;  Pool  v.  am€         l  by  ****  i9Uy'  C>  bZ'  p>  84> 
Utah  etc.  Co.,  36  Utah,  508,  105  Pac.  5  Great   Plains    etc.    Co.   v.   Lamar 

289;  Whalon  v.  North  Platte  etc.  Co.,  etc.  Co.,  31  Colo.  96,  71  Pac.  1119; 

11  Wyo.  313,  71  Pae.  995.  Lamar  etc.  Co.  v.  Amity  etc.  Co.,  26 

Compare  supra,  sec.  376,  under  the  Colo.   370,  77  Am.   St.  Rep.  261,   58 

original  method;   and  infra,  sec.  433  Pac.  600;   Mohl  v.  Lamar  Canal  Co., 

et   seq.,   under  the   Federal  Right   of  128  Fed.  776. 
Way  Acts. 


§418          Ch.  18.     HOW   APPROPRIATED— STATE   CODES.     (3d  ed.)  449 

of  title,  and  cannot  be  held  to  be  constructive  notice  of  the 
existence  of  such  ditch,  if  the  statute  under  which  the  same  was 
filed  has  been  declared  unconstitutional.6 

A  permit  when  issued  is  not  conclusive  of  the  holder's  right, 
which  is  open  to  contest  in  court  by  any  injured  party  as  set 
forth  in  the  preceding  sections.7 

(3d  ed.) 

§  418.    Prosecution  of  the  Work. — In  the  States  which  do  not 

require  maps  upon  the  filing  of  the  application,  duplicate  maps 
must  be  filed  with  the  State  Engineer  after  its  approval.  In 
Colorado  maps  must  be  filed  within  sixty  days  after  beginning 
work.  In  Texas,  within  ninety  days.  In  Nebraska,  Nevada 
and  Utah,  within  six  months  after  approval. 

In  all  the « States  the  work  must  be  prosecuted  with  diligence; 
but  certain  limits  are  placed  in  some  of  them:  Work  must  begin 
in  Nebraska  and  Utah  within  six  months  after  approval  of  appli- 
cation. In  Wyoming  it  must  begin  within  a  time  fixed  by  the 
State  Engineer,  not  exceeding  one  year.  In  Idaho  if  the 
capacity  of  the  proposed  works  is  less  than  twenty-five  cubic 
feet  per  second,  work  must  begin  within  sixty  days;  if  over 
that  capacity,  a  bond  must  be  filed  within  sixty  days  in  an  amount 
fixed  by  the  State  Engineer  not  exceeding  $10,000.8  The 

«  Blake  v.  Boye,  38  Colo.  55,  88  and  provide  for  1,496.31  miles  of  main 

Pac.  470,  8  L.  R.  A.,  N.  S.,  418.  canal  and  ditches.  The  total  esti- 

"  The  former  State  Engineer  of  mated  cost  is  $5,012,549.  During  the 

Wyoming,  Mr.  Clarence  T.  Johnston,  a  two  years  ended  September  30,  1906, 

pioneer  in  this  field,  says  in  a  letter  1127  permits  were  issued  for  new 

to  the  author:  "The  permit  when  ditches.  These  permits  describe  a 

issued  is  simply  a  privilege  given  by  total  of  1,315,011.87  acres  of  land  to 

the  public,  which  owns  the  water,  to  be  reclaimed  and  provide  for  2,083.16 

someone  who  proposes  to  make  a  bene-  miles  of  main  canals  and  ditches.  The 

ficial  use  thereof.  A  permit  protects  total  estimated  cost  of  construction  is 

a  party  while  construction  is  in  prog-  $4,427,275.40.  "Three  hundred  and 

ress  and  while  the  lands  are  being  forty-three  reservoir  permits  have  been 

reclaimed.  If  the  party  holding  the  issued  during  the  same  period.  Only 

permit  fails  to  comply  with  its  pro-  575  reservoir  permits  had  been  issued 

visions,  it  is  canceled.  If  work  is  in  the  fourteen  years  preceding  during 

carried  on  under  the  provisions  of  the  which  the  law  has  been  in  operation." 

permit,  the  division  superintendent  8  Stats.  1903,  p.  223,  sees.  2,  3,  as 

makes  an  inspection,  takes  the  testi-  arc-ended  1905,  p.  357 ;  Rev.  Codes,  sec. 

mony  of  the  water-user  under  the  3254,  as  amd.  by  Stats.  1911,  e.  64, 

permit  and  submits  the  same  to  the  (House  Bill  123).  "The  provision 

State  Board  of  Control,  which  issues  for  filing  bond  conditioned  on  com- 

tlie  final  certificate  of  appropriation."  pletion  of  the  work  was  enacted  in 

In  Wyoming  during  1905  and  1906,  1905,  and  there  has  been  little  op- 

346  enlargement  permits  were  issued.  portunity  to  observe  its  workings. 

These  describe  462,206.74  acres  of  land  Its  natural  result  will  be  to  prevent 
Water  Rights — 29 


±50  (3d  ed.)     Pt.  III.     THE  LAW  OF  PRIOR  APPROPRIATION.         §  418 

work  must  be  completed,  in  Idaho,  North  Dakota,  Oklahoma, 
South  Dakota,  Utah,  and  Wyoming  within  five  years,  but  the 
State  Engineer  may  name  a  shorter  time,  while  in  Nevada  it 
must  be  completed  in  the  time  requested  in  the  application, 
though  the  State  Engineer  may  name  a  shorter  time.  In  Idaho, 
North  Dakota,  Oklahoma,  South  Dakota  and  Utah  there  is 
a  further  provision  that  one-fifth  of  the  work  must  be  done 
in  one-half  the  time  allowed,  and  the  State  Engineers  of  some 
of  the  other  States  9  specify  the  same  requirement  in  the  absence 
of  statute  upon  the  point.  In  Nevada  an  affidavit  must  be 
filed  with  the  State  Engineer  within  thirty  days  after  the  time 
required  by  such  permit  for  the  commencement  of  work  there- 
under, stating  the  time  when,  the  place  where,  and  the  amount 
of  such  work  which  has  been  done  under  said  permit.10 

Proof  of  completion  of  the  work  must  be  made.  In  Idaho 
and  Utah,  for  example,  there  are  special  methods  for  making 
this  proof.  In  the  former  it  must  be  filed  with  the  State  Engi- 
neer on  a  form  provided  by  him,  and,  if  the  works  exceed  a 
capacity  of  fifty  cubic  feet  per  second,  must  be  certified  to  by 
some  competent  and  well-known  irrigation  engineer.  This  is 
published  for  four  weeks  in  a  newspaper.  The  State  Engineer 
then  makes  an  examination  of  the  works  and  files  a  report.  If 
all  is  satisfactory  he  issues  a  certificate  of  completion.  In  Utah, 
a  sworn  statement  and  proof  must  be  filed  with  the  State  Engi- 
neer on  a  form  provided  by  him,  subscribed  by  two  witnesses, 
and  accompanied  by  maps  also  certified.  In  most  of  the  States 
the  method  of  making  proof  of  completion  is  left  to  the  dis- 
cretion of  the  State  Engineer  or  Board  of  Irrigation. 

On  proof  of  completion,  a  certificate  is  issued  which  is  final, 
with  the  exception  of  four  States  and  Territories,11  where  the 
final  certificate  is  not  issued  until  a'ctual  application  of  the 
water  to  a  beneficial  use,  and  Colorado,  where  the  first  certi- 
ficate (issued  on  original  application  to  appropriate)  ends  the 
appropriator's  connection  with  the  office  of  the  State  Engineer. 
The  appropriator  must  pay  specified  fees. 

filings    for    the  purpose   of  blocking  9  See   statutes   and   forms   in   Part 

some  other  enterprise  or  for  the  pur-  IX,  below. 

pose  of  selling  worthless  'rights'  based  10  Nev.  Stats.   1909,  p.   31. 

only  on  a  permit  from  the  engineer."  H  Idaho,  North  Dakota,  Oklahoma, 

Bulletin  168,  U.  S.  Dept.  Agric.  and  South  Dakota. 


§419          Ch.  18.     HOW  APPROPRIATED— STATE   CODES.     (3ded.)  451 

It  is  enacted  in  Idaho  that  one  who  fails  to  be  on  time  with  the 
work,  proofs,  etc.,  "shall  be  deemed  to  have  abandoned  all  right 
under  his  permit."11* 

The  statutes  which  stop  at  completion  of  work  regard  actual 
use  as  not  entering  into  making  the  appropriation,  but  as  mat- 
ter subsequent,  nonuse  operating  by  way  of  abandonment  or 
forfeiture,  in  accordance  with  the  possessory  theory  of  the  law 
of  appropriation.12 

References  to  the  statutes  are  given  in  Part  VIII  of  this  book. 

(3d  ed.) 

§  419.     Cancellation   of  Permits  for  Failure  of  Work.— The 

statutes  usually  give  the  State  Engineer  power  to  cancel  permits 
for  failure  to  comply  with  the  above  conditions  regarding 
prosecution  of  work.  Some  rulings  in  that  regard  have  been 
made  by  the  courts.13  It  has  been  held  that  if  the  State  Engi- 
neer revokes  a  permit  for  failure  of  one-fifth  of  work,  and  an 
appeal  is  taken  from  him  to  the  State  court,  the  case  is  not  really 
an  appeal  but  becomes  a  judicial  suit,  and  is  removable  to  the 
Federal  courts.14  In  Idaho  it  is  held  that  the  effect  given  by  the 
statute  to  the  action  of  the  State  Engineer  in  canceling  or  refusing 
to  cancel  a  permit  is  that  such  action  is  thereby  fixed  as  a  time 
from  which  the  statute  of  limitations  begins  to  run  against  a  suit 
in  the  district  court,  or  against  an  appeal ;  but  that  it  does  not  pre- 
vent such  action  entirely,  the  court  saying  that :  ' '  Hearing  the  con- 
test and  canceling  the  permit  are  pure  matters  of  administration. 
He  is  in  no  way  authorized  to  decide  or  determine  what  rights, 
if  any,  the  permit  holder  has  acquired  under  the  permit,  or  by 
virtue  of  any  acts  taken  in  connection  with  the  construction 
of  the  works  authorized  by  the  permit,  or  the  diversion  or 
appropriation  of  water  in  connection  therewith."15 

In  Utah  it  is  held  that  the  State  Engineer  may  extend  the  time 
for  completion  of  work  as  often  as  he  sees  fit,  and  under  such 

Ha  Idaho  Rev.  Codes,  sec.  3254,  as  Idaho,  707,  102  Pac.  365;  Idaho  Co. 

amd.   by   Stats.    1911,   c.   64     (House  v.    Stephenson,    16    Idaho,    418.    101 

Bill  123).  Pac.  821;  Pool  v.  Utah  Co.,  36  Utah, 

12  See  supra,  sec.  139.  508,     105     Pac.     289;      Sowards     v. 

13  See,  generally,  Trade  Dollar  Co.  Meagher  (Utah),  108  Pac.  1113;  Van- 
v.  Eraser,  148  Fed.  587,  79  C.  C.  A.  derwork  v.  Hewes  (N.  M.),  110  Pac. 
37;    Waha   Co.   v.   Lewiston   Co.,   158  567. 

Fed.   137;   Lockwood  v.   Freeman,   15  14  Waha      Co.      v.      Lewiston      Co. 

Idaho,    395,    98    Pac.    295;    City    of  (Idaho),  158  Fed.  137. 

Pocatello    v.    Boss,    15    Idaho,    1,    96  15  Speer  v.    Stephenson,   16   Idaho, 

Pae.    120;    Speer   v.    Stephenson,    16  707,  102  Pac.  365. 


452   (3ded.)     Pt.  III.     THE  LAW  OF  PRIOR  APPROPRIATION.         §420 

conditions  as  he  may  require,  up  to  the  maximum  time  limit  fixed 
by  the  statute.  Short  of  such  maximum,  he  may  regard  any  time 
fixed  by  him  for  the  work  as  provisional  only.16  In  this  case  the 
State  Engineer  granted  a  permit  to  appropriate  water  for  power, 
and  fixed  a  time  for  completion,  and  then,  before  that  time  expired, 
granted  a  second  permit  to  another  for  the  same  purpose  and 
stream.  The  former,  though  working  diligently,  did  not  finish 
within  the  time  stated  and  inadvertently  failed,  when  the  time 
expired,  to  apply  for  an  extension,  but  secured  one  from  the  State 
Engineer  soon  after,  and  worked  thence  diligently  to  actual  com- 
pletion of  the  work,  investing  large  capital.  It  was  held  that  the 
former  prevailed ;  that  as  the  statute  did  not  expressly  make  time 
work  a  forfeiture,  the  State  Engineer  had  power  by  extension  of 
time  to  save  the  first  claimant's  rights  against  the  second  appli- 
cant, though  the  extension  was  granted  after  the.  original  time 
limit  had  expired.  In  effect,  this  is  a  holding  that  the  right  on 
completion  relates  back  (as  to  priority  against  other  claimants) 
to  the  date  of  application, 'if  the  work  is  done  diligently,  and  if 
the  State  Engineer,  in  his  discretion,  does  not  declare  the  con- 
trary; that,  in  the  absence  of  positive  action  by  the  State  En- 
gineer to  the  contrary,  the  old  law  as  to  relating  back  to  com- 
mencement of  work  applies.17  Since  this  decision  the  Utah  statutes 
were  amended  to  provide  that  cancellation  can  be  made  only  after 
an  order  to  show  cause  and  a  hearing.18 

(3d  ed.) 

§  420.    Issuance  of   Certificate   of  Appropriation. — The   final 

stage  in  making  the  appropriation  is  the  issuance  of  a  certificate 
of  appropriation.  These  certificates  are  numbered  consecutively 
according  to  the  date  of  original  application  for  a  permit,  thus 
preserving  the  doctrine  of  relation,  which  was  one  of  the  chief 

16  Questioning,    however,     whether,  tion  of  law,  and  has  discretion  to  ex- 
after  the  cessation  of  work  amounts  tend  it  in  other  cases  also  to  a  total  of 
to    an    abandonment,    the    State    En-  not    exceeding    fourteen    years    from 
gineer      could     extend    the     time    as  approval  of  application ;  or  he  may  de- 
against  an  intervening  applicant  for  clare  a  forfeiture.     Within  sixty  days 
the  same  water.  after  his  decision  any  party  may  bring 

17  Pool   v.    Utah    etc.    Co.     (Utah,  suit  to  have  the  matter  tried  in  court. 
1909),  105  Pac.  289.     See,  also,  Sow-  Utah  Laws  1911,  c.  3,  p.  2,  amending 
ards   v.   Meagher    (Utah,    1910),    108  Comp.    Laws    of    1907,    sec.    1288x14. 
Pac.  1113.  See,  also,  Stats.  1911,  c.  103,  p.  143, 

18  Sixty  days'  notice  must  be  given,  and   Stats.    1909,   c.    68.   p.   84.     See, 
and  the   State  Engineer  must  extend  also,   Idaho   Stats.   1909,  p.  300,   sec. 
the  time  if  delay  was  caused  by  opera-  223. 


§421          Ch.  18.     HOW  APPROPRIATED— STATE   CODES.     (3d  ed.)  453 

features  of  the  law  of  appropriation  as  it  originally  arose  in  Cali- 
fornia. 

Upon  the  proof  of  completion  of  work  the  State  Engineer  issues 
a  certificate  to  the  appropriator  under  his  seal  stating  details 
varying  in  different  States.  A  record  of  this  is  made  in  his  office. 
The  appropriator  is  required  to  record  this  with  the  recorder  or 
county  clerk  of  the  county  in  which  the  water  is  diverted,  and,  in 
a  few  of  these  States,  with  the  head  of  the  water  subdivisions  in 
which  the  stream  lies. 

In  Colorado,  the  approval  of  the  original  application  constitutes 
the  only  certificate  issued.19  On  the  other  hand,  in  Idaho, 
North  Dakota,  Oklahoma,  and  South  Dakota,  there  is  one  further 
step  that  must  be  gone  through  before  the  final  certificate  is 
issued.  Within  a  fixed  time  after  the  issuance  of  the  certificate 
of  completion  of  work,  there  must  be  filed  with  the  State  Engineer 
a  sworn  notice  of  actual  application  and  use  of  the  water.  This 
notice  must  be  subscribed  by  two  witnesses.  The  State  Engineer 
must  then  make  an  examination  of  the  use  to  which  the  water  is 
put.  Protests  may  be  filed  with  the  State  Engineer  by  other  par- 
ties. If  all  is  satisfactory,  the  State  Engineer  issues  a  final 
certificate,  or,  as  it  is  in,  these  States  called,  a  license,  bearing  the 
number  and  date  of  the  original  application  for  permit,  and  it  is 
filed  and  put  on  record  as  in  'the  other  States.20 

In  Oregon,  certificates  issued  for  rights  to  the  use  of  water  for 
power  development  acquired  under  the  provisions  of  this  act 
shall  limit  the  right  or  franchise  to  a  period  of  forty  years  from 
date  of  application,  subject  to  a  preference  right  of  renewal.21 

(3d  ed.) 

§  421.  Date  of  Right. — The  doctrine  of  "relation,"  as  it  arose 
under  the  original  method  of  appropriating  water,  is  preserved  by 
making  the  right  date  from  the  filing,  with  the  State  Engineer, 
of  the  application  to  appropriate.22  This  is  evidenced  by  num- 

3  M.  A.  S.,  1905  ed.,  sees.  2265a,          Nevada.— Stats.  1907,  p.  30,  sec.  29. 

e       i  *         •    -D    4.  ^TTTT  v  i  North  Dakota— Stats.  1905,  p.  274, 

See  statutes  in  Part  VIII,  below.  1    9    ,  n 

21  Or.  Stats.  1909,  c.  216,  sec.  53. 

22  For  example  (the  list  is  not  com-  Oregon. — Stats.  1909,  c.  216,  sec.  54. 

PlSo.-Stats.  1903,  p.  223,  sec.  8;  South  Dalcota.-Stzt*.  1905,  p.  201, 

Stats.  1907,  p.  314.  'cs'  Z'  M' 

Nebraska.— Comp.  Stats.  1903,  sec.  Utah.— Stats.  1905,  c.  108,  see.  46, 

6439;  Cobbey's  Ann.  Stats.,  sec.  6785;  and  subsequent  statutes. 

Laws  1895,  c.  69,  p.  254,  see.  31.  Wyoming. — Eev.  Stats.,  sec.  929. 


454  (3d  ed.)     Pt.  HI.     THE  LAW  OF  PRIOR  APPROPRIATION.         §  422 

bering  all  certificates  consecutively.  One  holding  a  permit  will, 
by  relation  back,  prevail  over  another  who  commenced  work 
earlier  without  a  permit.23 

In  Idaho,  on  enlargement  or  on  a  grant  of  extra  time,  priority 
dates  from  the  application  for  permission  to  make  such  enlarge- 
ment or  to  have  such  extra  time.24 

The  formality  attending  appropriation  under  these  statutes 
is  not  unlikely  to  somewhat  hinder  any  but  large  enterprises,  and 
tend  somewhat  to  prevent  small  appropriators  from  acquiring 
rights.  Evidently  it  is  intended  that  large  companies  shall  be 
formed  to  supply  consumers,  rather  than  that  consumers  should 
supply  themselves  directly,  as  heretofore.25 

(3d  ed.) 

§  422.  California  Water-power  Act  of  1911.— In  1911  Cali- 
fornia adopted  a  statute  applying  the  Wyoming  system  to  water- 
power  appropriations.1 

A  Board  of  Control  is  created  of  five  members  (with  the  gov- 
ernor and  the  State  Engineer  as  ex-officio  members),  until  a  pub- 
lic service  commission  is  created,  after  which  the  latter  is  to  act, 
and  the  Board  of  Control  shall  cease  to  exist  (section  20).  Refer- 
ence should  also  be  made  to  other  1911  California  statutes,  creat- 
ing a'department  of  engineering,2  a  conservation  commission,3  and 
proposing  a  constitutional  amendment  to  create  a  State  public  ser- 
vice commission.4 

Before  commencing  (or  enlarging)  work  to  develop  power,  one 
must  apply  to  the  board  for  a  permit  (section  6),  stating  details  pre- 
scribed in  section  7,  with  maps  and  other  data  prescribed  by  the 
board.  A  copy  of  the  application  must,  within  ten  days  after 
filing,  be  also  recorded  in  the  office  of  the  recorder  of  the  county 
where  the  proposed  works  are  to  be  erected  (section  7).  The  board 
may  return  the  application  to  be  corrected,  and  priority  is  re- 
tained if  the  application  is  returned  to  the  applicant  within  thirty 
days.  The  board  may  reject  the  project  within  six  months,  if  it 

23  Whalon  v.  North  Platte  etc.  Co.,          l  Stats.    1911,    c.    406.     See,    also, 
11  Wyo.  313,  71  Pac.  995.  Ibid.,  c.  407,  amending  Civ* Code,  sec. 

24  Stats.    1903,   p.   223-,   sees.   5,   8;  1410;    and    Ibid.,    c.    730,    amending 
but  see  Stats.  1907,  p.  314,  and  Rev.  Civ.  Code,  sec.  1416. 

?mdf'   S!5-  ,i2M   a|>-^o^by   StatS>          2  Cal.  Stats.  1911,  c.  409. 
1911,  c.  64  (House  Bill  123). 

25  "The  present  law  is  destined  to  3  Cal.  Stats.  1911,  c.  408. 

be  a  great  aid  in  the  construction  of  .   ~  ,    Q,    .      inni    0  , 

extensive    canals."     Bulletin    168,    U.  *  Cal.  Stats.  1911,  Senate    Amend- 

S.  Dept.  Agric.  ments>  c'  60' 


§422          Ch.  18.     HOW  APPROPRIATED— STATE   CODES.     (3ded.)  455 

deems  that .  public  interest  so  demands.  Approval  or  rejection 
is  indorsed  upon  the  application  and  it  is  returned  to  the  applicant. 

If  approved,  he  is  to  record  it  in  the  office  of  the  county  recorder 
where  the  works  lie,  and  may  then  proceed  (section  9).  Work  must 
begin  within  six  (6)  months  from  approval  and  be  prosecuted 
with  diligence,  or  the  board  may  revoke  its  approval.  The  work 
must  be  completed  in  a  time  fixed  in  the  permit,  not  exceeding  five 
years,  unless,  for  cause,  the  board  extends  the  time  not  over  one 
(1)  year  more  (section  10).  Upon  completion,  if  satisfactory  to  the 
board,  it  issues  a  license  for  a  term  not  over  twenty-five  years,  the 
contents  of  the  license  being  specified  in  section  13.  Renewal  may 
be  applied  for  in  the  next  to  last  year  before  expiration,  and  is  to 
be  granted  for  another  term  of  not  over  twenty-five  years,  under 
such  laws  as  may  then  be  in  force.  , 

The  amount  of  water  granted  is  limited  by  actual  use  (section 
8),  and  by  capacity  of  works  (section  16).  The  water-right  does 
not  vest  until  final  permit  (section  9).  Licenses  are  to  be  num- 
bered consecutively  as  to  each  stream  or  other  source,  according 
to  date  of  filing  application  (section  12). 

Licenses  are  subject  to  fees  and  charges,  viz.,  ten  ($10)  dollars 
upon  filing  application,  and  one  hundred  ($100)  dollars  upon 
receiving  a  license;  and  thereafter  annually  ten  (10)  cents  per 
theoretical  horse-power  in  excess  of  one  hundred  (100)  horse-power. 
These  charges  can  be  increased  or  decreased  by  the  board  at  any 
time  (section  18).  Annual  reports  must  be  made  to  the  Board  of 
Control  (section  26).  Section  28  contains  an  anti-trust  clause 
similar  to  that  in  Federal  permits  below  set  forth.  Violations  of 
this  act,  or  of  the  board's  orders,  is  a  crime  (section  29). 

From  the  operation  of  the  act  are  excepted  municipal  corpora-' 
tions,  irrigation  districts  generating'  electricity  for  use  within  the 
district,  and  lighting  districts  (section  30).  Nor  shall  the  act  im- 
pair existing  rights  (section  14). 

Another  act  of  the  same  year  prohibits  extraction  of  minerals 
from  waters  without  obtaining  a  State  permit,  but  does  not  pro- 
vide any  method  for  obtaining  a  permit.5 

These  acts  are  printed  in  full  in  the  collection  of  statutes  in 
Part  VIII,  below.  Reference  should  also  be  made  to  the  Forest 
Service  requirements  in  the  next  chapter. 

3  Cal.  Stats.  1911,  c.  454.  A  method  for  mineral  waters  on  State  lands  is 
provided  in  Stats.  1911,  c.  612. 


456  (3d  ed.)     Pt.  III.     THE  LAW  OF  PRIOR  APPROPRIATION.         §  423 

(3d  ed.) 

§  423.  Federal  Requirements. — The  preceding  rules  are  com- 
plete in  themselves,  and  if  on  public  land,  the  right  thus  acquired 
under  local  law  is  secured  to  the  appropriator,  so  far  as  Federal 
legislation  is  concerned,  by  the  act  of  1866,  now  sections  2339, 
2340,  Revised  Statutes  of  the  United  States.  But  the  Federal  de- 
partments are  building  a  new  system  based  upon  rights  of  way, 
in  numerous  matters  affecting  the  foregoing,  especially  within  the 
forest  reserves,  as  considered  in  the  next  chapter. 

§§  424-429.     (Blank  numbers.) 


§430     Ch.  19.    HOW  APPROPRIATED— FEDERAL  SYSTEM.    (3ded.)  457 


CHAPTER  19. 

HOW   AN   APPROPRIATION    IS    MADE— NEW   FEDERAL 

SYSTEM. 

§  430.     Introductory. 

A.     RULES  OF  THE  FOEEST  SEEVICE  FOB  RIGHTS  OF  WAY,  ETC. 

§  431.     Rules  for  rights  of  way,  etc. 

§  432.     Revocable  Forest  Service  permits. 

B.     FEDERAL  RIGHT  OF  WAY  ACTS. 
§  433.     Appropriations  under  the  Federal  Right  of  Way  Acts. 
§  434.     Nature  of  rights  acquired  under  the  Right  of  Way  Acts. 
§  435.     The  doctrine  of  relation. 
§  436.     Bonds,  stipulations  and  royalties. 
§  437.     Forfeiture. 
§  438.     Conflicts  with  settlers. 
§  438a.  Water-power  regulations  of  1911  of  the  Forest  Service. 

C.  RELATION  OF  THE  NEW  FEDERAL  SYSTEM  TO  THE  ACT  OF 

1866  AND  LOCAL  LAW. 
§  439.     Upon  reserved  land. 
§  440.     Upon  unreserved  land. 

§  441.     Recent  tendency  away  from  the  act  of  1866. 
§  442.     Conclusion. 
§§  443-451.     (Blank  numbers.) 

(3d  ed.) 

§  430.  The  foregoing  systems  of  local  law  are  based  (at  least 
so  far  as  they  involve  rights  of  way)  upon  the  act  of  Congress  of 
1866.1  But  the  Forest  Service  considers  that  the  act  of  1866  and 
local  law  do  not  govern  within  the  forest  reserves,  which  now  cover 
much  of  the  Western  area  containing  streams.  The  forest  system 
of  control  over  access  to  the  streams,2  through  rights  of  way  and 
reservoir  sites,  is  affecting  the  foregoing  local  method  of  acquiring 
rights  upon  reserved  public  land  and  substituting  the  following 
Federal  system,  which  is  gradually  being  extended  also  to  unre- 
served public  land.  We  here  consider  the  rules  now  being  worked 
out  by  the  Forest  Service  and  General  Land  Office. 

The  departments  regard  this  system  as  applying  to  changing  old 
works  as  well  as  to  building  new  ones. 

1  U.  S.  Rev.  Stats.,  sees.  2339,  2340.          2  Supra,  sees.  54,  225. 


458  (3ded.)     Pt.  III.    -THE  LAW  OF  PRIOR  APPROPRIATION.         §431 

A.     RULES  OF  THE  FOREST  SERVICE  FOR  RIGHTS  OF  WAY,  ETC. 

(3d  ed.) 

§  431.  Rules  for  Rights  of  Way,  etc.— Forest  Service  require- 
ments for  rights  of  way  are  published  in  the  Use  Book  issued 
by  the  Forest  Service.3 

A*s  below  considered,  vested  easements  may  be  obtained  for 
irrigation,  mining  (power?),  and  municipal  enterprises.  »But  there 
are  delay,  expense  and  formality  in  obtaining  them.  The  individual 
farmer,  prospector,  or  settler  does  not,  the  writer  is  informed, 
avail  himself  thereof;  and  they  cannot  be  obtained  for  any  pur- 
pose other  than  just  named.  Consequently,  to  people  living  within 
the  forests,  as  a  rule,  the  following  apply: 

The  act  of  Congress  of  June  4,  1897,4  creating  the  Forest 
Service,  provides:  ''The  Secretary  ....  may  make  such  rules 
and  regulations  ....  as  will  insure  the  objects  of  said  reserva- 
tions, namely,  to  regulate  their  occupancy  and  use  and  to  preserve 
the  forests  thereon  from  destruction";  and  upon  this  authority, 
the  Service  will  grant  ''special  use"  permits  under  the  general 
authority  to  make  rules  and  regulations  within  the  reserved 
areas.  Such  permits  are  granted  for  any  purpose  at  the  discre- 
tion of  the  forester,  and  under  such  terms  as  he  may  designate; 
and  this  may  include  permits  for  irrigation,  mining,  municipal  or 
power  purposes  where  the  claimant  does  not  proceed  under  the 
special  acts  below  mentioned.  Application  is  required  to  be 
made  to  the  local  forest  supervisor.  A  charge  for  the  permit  or 
any  renewal  thereof  will  be  made  (excepting,  so  far  as  concerns 
us  here,  irrigation,  mining,  municipal  or  sawmill  plants),  and 
applicants  must,  "before  a  permit  is  issued,  make  all  required  pay- 
ments and  agree  that  any  necessary  construction  work  will  com- 
mence within  some  definitely  stated  time ;  that  the  work  will  be 
completed  within  a  certain  period,  and  that  beneficial  use  of  the 
permit  will  be  made  for  at  least  a  certain  stated  period  each  year. 
Such  time  is  to  be  reckoned  from  the  date  the  permit  is  issued." 

Being  revocable,  such  permits  are  probably  destroyed  by  home- 
stead, mining  or  other  locations  passing  the  fee,  as  well  as  by  act 
of  the  forest  officers. 

3  The  following  is  taken  from  the  other  uses  is  now  in  preparation,  but 

"Use     Book"     for    1908.     See,     also,  not  yet  issued. 

"Water   Power   Use    Book    of    1911,"  *  30  Stat.  11. 
infra,  sec.  438a.     A  new  Use  Book  for 


§432      Ch.  19.    HOW  APPROPRIATED— FEDERAL  SYSTEM.    (3ded.)459 

(3d  ed.) 

§  432.     Revocable  Forest  Service  Permits. — The  following  are 

some  of  the  rules  in  the  Use  Book  of  1908 : 5 

"Reg.  6.  Permits  are  necessary  for  all  occupancy,  uses,  opera- 
tions, or  enterprises  of  any  kind  within  national  forests,  whether 
begun  before  or  after  the  national  forest  was  established,  except: 
(a)  Upon  patented  lands;  (b)  upon  valid  claims  for  purposes 
necessary  to  their  actual  development  and  consistent  with  their 
character;  (c)  upon  rights  of  way  amounting  to  easements  for 
the  purposes  named  in  the  grants;  (d)  prospecting  for  minerals, 
transient  camping,  hunting,  fishing,  and  surveying  for  lawful 
projects. 

"Reg.  7.  Permits  for  the  use  of  the  national  forests,  unless 
otherwise  specifically  fixed  by  regulation,  may  be  granted  by  the 
forester  for  any  term  consistent  with  national  forest  interests. 
.The  forester  may  also  make  a  reasonable  charge  for  any  permit, 
right,  or"  use.  (Preference  in  the  use  of  national  forest  lands  and 
resources  will  be  given  to  local  residents.) 

"Reg.  8.  Permits  are  not  assignable,  and  abandonment  in 
favor  of  another  necessitates  new  application  and  permit.  In 
case  of  abandonment  and  issuance  of  new  permit,  the  original 
permittee  may  sell  his  improvements  to  the  new  permittee,  and 
any  payments  made  by  him  may  apply  on  the  new  permit,  in  the 
discretion  of  the  forester. 

"Reg.  9.  Occupancy  under  permit  secures  no  right  or  claim 
against  the  United  States,  either  to  the  land  or  to  any  improve- 
ments upon  it,  beyond  the  uses  conferred  by  the  permit.  Im- 
provements made  by  the  permittee,  except  fences,  may  not  be 
removed  except  with  the  written  consent  of  the  supervisor. ' ' 

Reg.  10.  Renewals  rest  in  the  discretion  of  the  forester. 

Reg.  11.  Forbids,  among  other  things,  the  construction  of 
ditches,  dams,  canals,  pipe-lines,  flumes,  tunnels  or  reservoirs 
without  a  permit  or  in  violation  of  the  terms  of  a  permit  "except 
as  allowed  by  law  and  national  forest  regulations,  and  except 
upon  patented  land  or  upon  a  valid  claim  for  the  actual  develop- 
ment of  such  claim,  consistent  with  the  purposes  for  which  it 
was  initiated." 

These  revocable  permits  appear  to  be  the  general  practice  for 
people  living  in  the  mountains,  the  aim  being  that  the  Federal 

5  See   the   new  power    regulations,  infra,  sec.  438a. 


460  (3d  ed.)     Pt.  III.     THE  LAW  OF  PBIOB  APPBOPEIATIOX.         §  433 

government  should  no  longer  allow  fee  simple  rights  if  it  can  be 
avoided.6 

It  had  been  contended  that  the  Forest  Service  requirements  were 
laws  rather  than  regulations,  and  exceeded  the  power  conferred  by 
Congress,  or  that  Congress  could  confer;  that  if  regulations,  the 
Constitution  **  requires  them  to  be  made  by  Congress  itself,  and 
that  if  laws,  Congress  cannot  delegate  its  law-making  power  to 
executive  officers.  The  rules  were  held  valid  for  civil  purposes 
in  a  number  of  cases,6b  and  also  sustained  in  criminal  prosecutions 
in  a  number  of  cases,6"  while  some  other  cases  held  them  invalid 
upon  the  grounds  stated.7  Their  validity  has  now  been  established 
by  the  supreme  court  of  the  United  States  in  two  rulings  just 
handed  down.8 

B.     FEDERAL  BIGHT  OF  WAY  ACTS. 
(3d  ed.) 

§  433.    Applications  Under  the  Federal  Right  of  Way  Acts. — 

The  foregoing  general  revocable  permit  system  has  been  built 
upon  the  clause  in  the  act  of  1897,  above  quoted,  for  making  rules 
and  regulations  to  preserve  the  reservations.  There  are  also  acts 
of  Congress  specifically  applying  to  rights  of  way  and  reservoir 
sites  within  reserved  land;  chiefly  the  acts  of  March  3,  1891, 
February  15,  1901,  and  February  1,  1905,  and  March  4,  1911. 
These,  and  others,  are  quoted  below.9  A  considerable  body  of  regu- 
lations has  been  adopted  by  the  departments,  and  for  further  de- 
tails the  reader  should  make  application  to  the  Forest  Service  for 
the  "Use  Book"  and  to  the  Land  Office  for  "Regulations  Concern- 
ing Rights  of  Way. ' '  There  is  little  to  be  found  in  the  statutes  or 
decisions.  All  that  the  writer  has  been  able  to  discover  of  such 
nature  is  collected  in  the  following  sections. 

«  "I  do  not  believe  that  a  single  156  Fed.  687;  United  States  r.  Biz- 
acre  of  our  public  lands  should  here-  zinelli,  182  Fed.  675. 
after  pass  into  private  ownership  ex-  7  United  States  v.  Blasingame,  116 
cept  for  the  single  purpose  of  home-  Fed.  654;  United  States  v.  Matthews, 
stead  settlement."  Speech  of  Theo-  146  Fed.  306 ;  Dent  v.  United  States, 
dore  Boosevelt,  at  Denver,  Colo.,  Aug.  8  Ariz.  138,  71  Pac.  920;  United  States 
29,  1910.  v.  Grimaud,  170  Fed.  205. 

6a  Article  4,  sec.  3.  8  Grimaud  v.  United  States,  31  Sup. 

6b  Dastervignes    v.    United    States,  Ct.  Sep.  480  (May.  1,  1911)  ;  Light  v. 

122  Fed.  30.  58  C.  C.  A.  346;  United  United  States,  31   Sup.   Ct.  Bep.  485 

States  v.  Dastervignes,  118  Fed.  199;  (May  1,  1911).     Upon  first  argument 

United   States   v.   Shannon,   151   Fed.  the  court  had  been  divided  and  no  de- 

863;    Same   v.    Same,    160    Fed.    870.  cision     had     been     reached.     United 

See,  also.  38  Land  Dee.  67.  States  v.  India,  216  U.  S.  614,  30  Sup. 

6c  United    States   v.   Deguirro,    152  Ct.  Bep.  576,  54  L.  Ed.  639. 

Fed.  568;  United  States  v.  Domingo,  9  Infra,  sec.  1428,  Federal  statutes. 
152  Fed.  566;  United  States  v.  Bale, 


§433      Ch.  19.    HOW  APPROPRIATED— FEDERAL  SYSTEM.    (3ded.)  461 

Under  these  acts,  the  appropriates  must  comply  with  the  State 
law  for  acquiring  water-rights  10  (how  far  he  must  comply  with 
State  law  regarding  rights  of  way  is  considered  below),  and  fur- 
ther, must  file  with  the  Secretary  of  Interior  a  copy  of  its  articles 
of  incorporation  (if  a  corporation),  and  also  maps  and  statements 
describing  the  proposed  right  of  way,  and  these  must  be  approved 
by  the  Secretary  of  the  Interior,  who  will  hear  protests  from 
other  parties  before  giving  his  approval.  (Upon  reserved  land, 
he  must  file  also  with  the  chief  of  the  reserved  department,  as 
hereafter  considered.)  Maps  may  be  received  of  canals  already 
constructed  at  the  time  of  the  passage  of  the  act,  as  well  as  new 
canals.11  If  an  application  is  made  under  the  wrong  act,  it  may 
be  considered  under  such  act  as  it  might  properly  come  under.12 
The  acts  do  not  apply  to  Alaska.13  The  Secretary  of  the  In- 
terior has  ruled  that  he  may  make  withdrawals  of  land  from 
operation  of  the  Right  of  Way  Act  of  March  Z,  1891.14 

Upon  unsurveyed  land,  the  supreme  court  of  New  Mexico  has 
held  that  the  act  of  March  3,  1891,  does  not  require  filings,  nor 
approval  by  officials,  and  a  right  vests  upon  completion  of  work 
(as  under  the  act  of  1866)  ;  filings  being  sufficiently  timely  if 

10  "While  these  acts  grant  rights  of  vice   Water   Power   Use   Book"   says: 

way  over   the   public  lands   necessary  "Occupancy  and  use  of  national  for- 

to  the  maintenance  and  use  of  ditches,  est  lands  is  the  sole  privilege  granted 

canals  and  reservoirs,   the   control  of  under  a  water-power  permit.     In  the 

the  flow  and  use  of  the  water  is,  so  issuance  of  such  permits  no  attempt 

far  as  this  act  is  concerned,  vested  in  will    be    made    to    adjudicate    water- 

the   States   or   Territories,    the    juris-  rights  since  water-rights  are  acquired 

diction  of  the  Department  of  the  In-  under  State  laws  and  adjudicated  by 

terior  being  limited  to  the  approval  of  the     courts.     Therefore,    no     protests 

maps  carrying  the  right  of  way  over  against   the   granting   of   an   applica- 

the  public  lands.     If  the  right  of  way  tion,   if   based   upon   alleged   lack   of 

applied    for    under    this    act    in    any  water-rights,  will  be  considered;   nor, 

wise   involves    the    appropriation    of  in  general,  will  any  allegation  that  the 

natural  sources  of  water  supply,  the  time   of   beginning   or   completion   of 

damming    of     rivers,    or    the     use    of  construction   has   been,   or  is   delayed 

lakes,  the  maps  should  be  accompanied  by  litigation  over  water-rights  be  ac- 

by  proof  that  the  plans  and  purposes  cepted  as  a  sufficient  reason  for  grant- 

of  the  projectors  have  been  regularly  ing  any  extensions  of  time." 

submitted    and    approved    in    accord-  n  15  Land  Dec    578 

ance  with   the  local  laws   or  customs  12  Northern     Cal     p'QweT     c        3? 

governing    the    use    of    water    in   the  ^  d  D        &Q     x         c        }    W/Co., 

State  or  Territory  in  which  such  right  ^  Land  D      •        *  Applications   can^ 

of  way   is   located.     No   general   rule  b     ffl             .    th/sp            ig  CQm. 

can  be  adopted  in  regard  to  this  mat-  Anderson  v.  Spencer,  38  Land 

ter.     Each   case   must   rest   upon   the  £        „„„ 
showing     filed."     Circular     of     Land 

Office  Regarding  Rights  of  Way,  ap-  ™  26  Land  Dec.  305;  35  Land  Dec. 
proved  June  6,  1908. 

Reg.  L.  5  of  the  new  "Forest  Ser-  1*  39  Land  Dec.  105. 


462  (3d  ed.)     Pt.  III.     THE  LAW  OF  PRIOR  APPROPRIATION.         §  434 

made  within  twelve  months  after  the  government  has  surveyed 
the  land.15 

In  the  year  1909-10,  reports  on  applications  for  rights  of  way 
over  public  domain  for  reservoirs,  canals,  ditches,  etc.,  were  ren- 
dered on  two  hundred  and  twenty-nine  applications,  forty-one 
of  which  were  adverse  and  one  hundred  and  eighty-eight  were 
favorable.15* 


(3d  ed.) 

§  434.    Nature  of  the  Right  Acquired  Under  the  Right  of  Way 

Acts. — Under  the  act  of  1891  for  irrigation,  the  estate  acquired 
is  a  vested  easement  or  base  fee  during  beneficial  use.16  Only 
irrigation  companies  were  within  the  terms  of  the  act  of  1891,17 
and  the  Secretary  of  the  Interior  refused  to  approve  filings  of 
companies  seeking  to  build  canals  for  electric  lighting,  water 
power,18  or  city  water  supply,19  or  floating  lumber,20  or  domestic, 
manufacturing  or  hydraulic  purposes.21  By  the  act  of  May  11, 
1898,  irrigation  companies  are  permitted  to  make  filings  though 
they  also  proposed  other  subsidiary  uses,  if  the  subsidiary  uses 


is  United  States  v.  Lee  (N.  M.), 
110  Pac.  607. 

I5a  Report  of  1910  of  Commissioner 
of  the  General  Land  Office,  p.  9. 

16  38  Land  Dec.  211;  38  Land  Dee. 
493;  37  Land  Dec.  6;  Whitmore  v. 
Pleasant  Valley  Co.,  27  Utah,  284, 
75  Pac.  748;  Nippel  v.  Forker,  9 
Colo.  App.  106,  47  Pac.  766;  Same 
v.  Same,  26  Colo.  74,  56  Pac.  577; 
United  States  v.  Whitney  (Idaho), 
176  Fed.  593;  Rasmussen  v.  Blust 
(1909),  85  Neb.  198,  133  Am.  St. 
Rep.  650,  122  N.  W.  862;  United 
States  v.  Lee  (N.  M.),  110  Pac.  607. 

"The  right  granted  is  not  in  the 
nature  of  a  grant  of  lands,  but  is  a 
base  or  qualified  fee.  The  possession 
and  right  of  use  of  the  lands  are  given 
for  the  purposes  contemplated  by  law, 
but  a  reversionary  interest  remains 
in  the  United  States,  to  be  conveyed 
by  it  to  the  person  to  whom  the  land 
may  be  patented,  whose  rights  will 
be  subject  to  those  of  the  grantee  of 
the  right  of  way."  Regulations  of 
June  6,  1908,  pp.  4,  5. 

"The  act  of  March  3,  1891,  is  gen- 
eral and  permanent  in  its  character, 
and  operates  continuously  to  convey 


the  title  to  public  lands  to  all  persons 
complying  with  its  provisions." 
United  States  v.  Whitney  (Idaho), 
176  Fed.  593,  saying  the  act  is  in 
this  similar  to  the  Railway  Right  of 
Way  Act  of  March  3,  1875,  and  cit- 
ing cases.  A  similar  comparison  to 
the  Railway  Act  is  made  in  United 
States  v.  Lee  (N.  M.),  110  Pac.  607; 
De  Weese  v.  Henry  Inv.  Co.,  39  Land 
Dec.  27.  See,  as  to  the  Railway  Act, 
Rio  Grande  etc.  Co.  v.  Stringham 
(Utah),  110  Pac.  868,  holding  that  on 
approval  by  the  Secretary  of  the  In- 
terior of  the  profile  of  a  proposed 
railroad  through  public  lands  in  ac- 
cordance with  act  of  March  3,  1875, 
the  title  to  the  right  of  way  vested 
in  the  railroad  company,  and  a  subse- 
quent patent  of  land  including  the 
right  of  way,  though  not  made  sub- 
ject thereto,  did  not  devest  the  title 
so  acquired.  See,  also,  Minidoka  Co. 
v.  Weymouth  (Idaho),  113  Pac.  455. 

17  32  Land  Dec.  452. 

18  18  Land  Dec.  573. 

19  20  Land  Dec.  154,  464. 

20  21  Land  Dec.  63. 

21  25   Land   Dec.   344. 


§434      Ch.19.    HOW  APPROPRIATED— FEDERAL  SYSTEM.    (3ded.)  463 


are  of  a  public  nature,22  but  the  original  application  must  still  be 
primarily  for  irrigation.23 

Under  the  act  of  1905  for  municipal  or  mining  purposes  the 
estate  acquired  is  also  a  vested  easement  or  base  fee,  like  the  act 
of  1891.24  But  it  was  ruled  by  the  departments  that  only  irriga- 
tion, municipal  and  mining  purposes  are  covered  by  the  foregoing 
acts,  and  that  vested  rights  could  be  acquired  for  no  other  purpose. 
Other  purposes  (of  which  "commercial  power  purposes"  is  the 
most  important)  were  considered  only  under  the  act  of  1901.25 

Under  the  act  of  1901,  the  right  acquired  is  considered  to  give 
only  a  permit  revocable  at  will  by  the  forester  or  other  depart- 
ment head,1  and  probably  revoked  by  subsequent  homestead, 
mining  or  other  title  to  the  fee.2  The  revocable  character  of  the 
estate  under  the  act  of  1901  is  illustrated  by  revocations  under 


22  32  Land  Dec.  462;  35  Land  Dec. 
154.    . 

23  32  Land  Dec.  462. 

24  Circular   of  Land   Office,   infra; 
Use  Book  of  Forest  Service  for  1908, 
pp.   67,   68;    see,   also,   37   Land   Dec. 
80,  saying  it  is  unnecessary  there  to 
decide. 

"The  right  granted  is  not  in  the 
nature  of  a  grant  of  lands,  but  as  a 
base  or  qualified  fee,  giving  the  pos- 
session and  right  of  use  of  the  land 
for  the  purposes  contemplated  by  the 
act,  during  the  period  of  beneficial 
use.  When  the  use  ceases,  the  right 
terminates,  and  thereupon  proper  steps 
will  be  taken  to  revoke  the  grant.  No 
right  whatever  is  given  to  take  any 
material,  earth  or  stone  for  construc- 
tion or  other  purposes,  nor  is  any 
right  given  to  use  any  land  outside 
of  what  is  actually  necessary  for  the 
construction  and  maintenance  of  the 
works."  Regulations  concerning  rights 
of  way;  approved  June  6,  1908,  sec. 
48,  under  A.  C.  February  1,  1905 
(33  Stat.  628). 

25  The  act  of  May  11,  1898,  amend- 
ing   the    act    of    1891,    is   ambiguous 
regarding    how    far   irrigation   rights 
may   be   used    for   other   purposes   of 
a  public  nature,  and  the  departments 
rule  that  commercial  power  companies 
come  only  under  the  act  of  February 
15,   1901,  and  not  under  either   1891 
or    1905,    e^en    though    they    propose 
to    furnish    power    to    irrigators    who 


pump  water  for  irrigation  (Kern 
River  Co.,  38  Land  Dec.  302).  To 
come  under  the  act  of  1891  or  1905 
the  power  use  must  be  only  incidental, 
and  not  the  main  object  of  the  en- 
terprise (Inyo  Consolidated  Water  Co., 
37  Land  Dec.  78;  Northern  Cal. 
Power  Co.,  37  Land  Dec.  80;  Kern 
River  Co.,  38  Land  Dec.  302). 

1  Ibid.,  and  31   Land  Dec.   13;   32 
Land  Dec.  461. 

Before  the  Senate  Committee  on 
Public  Lands,  February  16,  1910,  Mr. 
Garfield  spoke  of  this  act  of  1901,  and 
said:  "The  amendments  which  we  sug- 
gest clear  away  the  difficulty  that  has 
arisen  in  administering  that  act,  by 
authorizing  a  lease  good  for  fifty 
years,  instead  of  a  revocable  permit, 
which  is  the  only  kind  of  permit  that 
can  be  issued  under  the  law  as  it 
stands  to-day." 

2  There  is  some  contention  that  it 
is  discretionary  with  the  departments 
to  bring  all  uses  under  the  revocable 
permit  system  of   1901   and  that  the 
act  of   1891  be  declared  repealed  by 
that  of  1901,  thereby  making  irriga- 
tion   rights    of    way    revocable,    and 
bringing  irrigation  under  Federal  in- 
stead of  State  control.     The  supreme 
court   of   New   Mexico   held   that   the 
act  of  March  3,  1891,  is  not  repealed 
by  the  act  of  1901.     United  States  v. 
Lee   (N.  M.),  110  Pac.  607.     See  39 
Land  Dec.  105. 


464  (3d  ed.)     Pt.  III.     THE  LAW  OF  PRIOR  APPROPRIATION.         §  435 

Secretary  Garfield.3  By  an  act  approved  March  4,  1911,  the  de- 
partment head  is  authorized  to  grant  a  fifty  year  easement  for 
power  development.  (This  act  may  be  availed  of  by  persons  previ- 
ously holding  revocable  permits,  as  well  as  new  projects.) 

(3d  ed.) 

§  435.  The  Doctrine  of  Relation. — Under  the  acts  granting 
easements,  it  is  not  yet  settled  at  what  point  of  time  vesting  of 
the  right  occurs. 

Against  the  United  States,  upon  unsurveyed  land,  it  has  been 
held  that  the  right  vests  upon  completion  of  work,  filings  being 
unnecessary  until  twelve  months  after  government  survey  is 
made,  whereupon  approval  of  the  Secretary  is  simply  confirmation 
of  existing  right.4  But  the  United  States  may  withdraw  the  land 
under  withdrawal  act  of  Congress  any  time  before  completion; 
that  is,  the  right  does  not  relate  back  to  beginning  of  work  as 
against  the  United  States ;  the  doctrine  of  relation  does  not  apply 
against  the  United  States  so  as  to  prevent  withdrawing  the  land 
before  completion,  for  the  Reclamation  Service  5  or  for  a  national 
park.6 

Upon  surveyed  land,  or  between  rival  private  parties,  until  ap- 
proval, the  filings  give  no  vested  right.7  But  the  general  view 
seems  to  be  that  the  right  vests  when  there  is  an  approval.8  It 
has  been  said  to  vest  upon  approval  even  before  beginning  work ; 9 

3  The    following    is    the   statement  *  United  States  v.  Lee  (N:  M.),  110 

appearing    in    192    North    American  Pac.  607. 

Review,  495,  in  an  article  criticising  5  United  States  v.  Rickey,  164  Fed. 

the  action:  496,   permitting   such  withdrawal   be- 

"  .  .  .  .  Two  days  before  Mr.  Gar-  fore  completion  of  work  though  after 

field  was  to  go  out  of  office,  there  was  approval  of  application, 

issued   a    list    of   what    is   called   the  6  Sierra  D.  &  W.  Co.,  38  Land  Dec. 

'Decisions  of  March  2,  1909,'  by  which  547,  permitting  such  withdrawal  while 

'Permits   issued   by   the   Secretary   of  application    was    pending   but   before 

the    Interior   under   act   of   February  approval  of  application. 

15,    1901,'    were    revoked.     This    list  7  De  Weese  v.  Henry  Inv.  Co.,  39 

covers    forty    different    plants.     The  Land  Dec.  27. 

names  of  these  plants  are  withheld,  8  Authorities  cited  supra  with  re- 
because  it  would  only  serve  to  compli-  gard  to  the  nature  of  the  estate,  and 
cate  titles,  but  it  is  worth  while  to  infra  as  to  the  necessity  for  action 
know  that  these  revocations  were  is-  to  declare  a  forfeiture.  But  see  37 
'sued  without  advising  with,  or  grant-  Land  Dec.  6,  to  the  effect  that  ap- 
ing any  hearing  whatsoever  to,  the  rep-  proval  under  the  act  of  1891  gives  no 
resentatives  of  any  of  the  water-power  right  where  work  was  never  begun 
companies.  Some  of  the  plants  had  thereunder. 

been  completed  and  were  in  operation,  9  Rasmussen    v.    Blust    (1909),    85 

and    upon    others    hundreds    of    thou-  Neb.  198,  133  Am.  St.  Rep.  650,  122 

sands  of  dollars  had  been,  expended."  N.  W.  862. 


§436      Ch.  19.    HOW  APPEOPBIATED— FEDERAL  SYSTEM.    (3ded.)  465 

though  it  -has  also  been  held  that  the  right  does  not  vest  until 
work  has  been  actually  completed.10  The  last  ruling  is  more  in 
line  with  the  previous  local  laws,  which  held  the  right  to  vest 
upon  completion  of  work  only,  then  relating  back  to  posting  of 
notice  or  filing  of  application  with  the  State  Engineer;11  but 
rulings  of  the  land  office  and  the  authorities  generally  are  to  the 
effect  that  the  estate  vests  upon  approval  of  the  application,  sub- 
ject only  to  action  in  court  to  declare  a  forfeiture  for  failing  to 
complete  the  work  within  the  time  allowed.12 

Between  rival  claimants,  the  first  in  activity,  and  not  the  first 
in  making  filings,  is  first  in  right  to  the  Secretary  of  the  Interior's 
approval.13  When  vested,  it  dates,  to  determine  priority  between 
rival  claimants,  from  the  beginning  of  the  survey,  and  not  from 
filing  application  in  the  land  office.14 

The  grant  under  the  act  of  1891  includes  a  width  up  to  fifty 
feet  (only  so  much  as  is  necessary)  on  each  side  of  the  center  line 
of  the  canal.  It  also  includes  the  right  to  use  adjacent  materials 
(timber,  stone,  etc.)  in  constructing  the  canal,  but  this  applies 
only  to  the  original  construction,  and  not  to  additions  or  repairs.15 
What  is  "adjacent"  depends  upon  the  facts  of  each  case.16  The 
approval  of  filings  under  the  act  of  1891  gives  no  exclusive  right 
to  a  canyon  or  defile,  and  a  right  of  way  may  also  be  granted, 
if  practicable,  to  other  parties.17 

(3d  ed.) 

§  436.    Bonds,  Stipulations  and  Royalties. — The  Forest  Service 

at  present  does  not  charge  for  "special  use  permits"  for  irriga- 
tion, mining,  municipal  or  sawmill  uses,  but  this  does  not  neces- 
sarily indicate  no  charge  hereafter.  In  any  event,  it  charges  all 
persons  for  wood  cut  in  clearing,  etc. 

In  case  of  large  enterprises  for  any  purpose,  bonds  and  stipu- 
lations are  required,  a  copy  thereof  being  printed  below  in  the 

10  United  States  v.  Rickey,  164  Fed.  land  office  diligently  made,  and  will 
496,  and  see  37  Land  Dec.  6.  prevail  over  a  rival  applicant  begin- 

11  Supra,  sees.  393  et  seq.,  421.  ning   a   survey   three    days   later   but 

12  Infra,  sec.  437.  getting  his  application  first  on  file  in 

13  De  Weese  v.  Henry  Inv.  Co.,  39  the  land  office.     Anderson  v.  Spencer, 
Land  Dec.  27.  38  Land  Dec.  338.     See,  also,  United 

14  It    was    ruled    that,    under    the  States  v.  Lee  (N.  M.),  110  Pac.  607. 
acts  of   1891   and   1901,  priority  for  15  34  Land  Dec.  213;  14  Land  Dec. 
the  right  of  -way  relates  back  to  the  566. 

beginning  of  the  survey,  if  work  was  W  28  Land  Dec.  439. 

diligently  done  and  application  in  the          17  35  Land  Dec.  637. 
Water  Rights — 30 


466  (3d  ed.)     Pt.  III.     THE  LAW  OF  PRIOR  APPROPRIATION.         §  436 

part  of  this  book  relating  to  forms.  The  power  to-do  this  is 
deduced  from  the  discretion  to  refuse  entirely.  If  the  permit  or 
easement  may  be  entirely  refused,  it  is  ruled  that  it  may  be 
granted  upon  any  condition.18  The  bonds  cover  payment  for 
timber  cut  or  injured;19  and,  in  the  case  of  power  companies, 
royalties  to  the  United  States  and  (it  was  proposed)  stipulations 
as  to  rates  to  be  charged,  and  for  control  of  the  power  plant  by 
the  forest  officer.20  An  elaborate  set  of  stipulations  was  made  in 
the  revocable  permit  to  San  Francisco  for  a  municipal  water 
plant.21  In  the  case  of  railways  over  power  sites,  a  ruling  for- 
merly required  a  stipulation  to  move  the  tracks  when  required  to 
do  so  by  the  Federal  department ;  but  the  present  ruling  is  that 
either  the  railway  permit  will  b€  granted  absolutely,  or  the  land 
will  be  withdrawn  absolutely  for  conservation.22 

These  requirements  are,  as  yet,  based  upon  the  general  statutes 
giving  the  officials  discretion  to  make  rules  and  regulations  or  to 
refuse  permits.  They  are  not,  as  yet,  contained  in  more  specific 
statutory  form.  It  is  contended,  on  the  authority  of  United 
States  v.  Gratiot,23  that  Congress  may  enact  them  specifically,  and 
further  may  provide  a  general  leasing  system  for  disposal  of  the 
public  lands.  These  requirements  are  as  yet  further  confined 
mostly  to  the  forest  domain.  In  national  parks  one  Secretary  of 
Interior  ruled  that  no  rights  of  any  kind  would  be  granted  to 
private  enterprises.24  The  previous  secretary  had  granted  a  per- 
mit through  Yosemite  Park  to  a  city  for  water  supply,1  but  its 
revocation  remains  under  consideration.  In  a  previous  case,  how- 
ever, rights  had  been  granted  in  the  Sequoia  National  Park,  and 
a  charge  by  way  of  royalty  was  imposed  of  two  and  one-half  per 
cent  of  the  gross  receipts;  and  in  the  Coeur  D'Alene  Indian 
Reservation  the  Interior  Department  imposed  a  royalty  charge.2 

Further  consideration  is  given  in  a  following  section.3 

18  United  States  v.  Bailey  (S.  D.),  railway  located  since  1890,  which  de- 
178  Fed.  302.  partment    ruling    is    disapproved    in 

19  Ibid.  Minidoka  Co.  v.  Weymouth    (Idaho), 

20  See  26  Op.  Atty.  Gen.  421,  where  113  Pac.  455. 

Attorney   General   Bonaparte  advised  23  14  pet   526    10  L   Ed   573 

in  favor  of  the  power  to  make  these  24  ^^         Ballinger  in  Sierra  D. 

stipulations.     Stipulations  as  to  rates  &  w   Q       38'Land  D*     547 

to  be  charged  seem  to  be  omitted  in  ' 

the  new  form  below  considered.  l  Mr-  Garfield  in  City  of  San  Fran- 

21  City  of  San  Francisco,  36  Land  C1SCO>  36  Land  Dec.  409. 

Dec.  409.  2  Mr.    Garfield    before    the    Senate 

22  39  Land  Dec.  86,  89,  209.     See,       Committee  on  Public  Lands,  February 
also,  36  Land  Dec.  482,  as  to  United       16,  1910. 

States  Reclamation  Service  ditch  over          3  Infra,  sec.  438a. 


§437      Ch.  19.    HOW  APPROPEIATED— FEDERAL  SYSTEM.    (3ded.)   467 

So  far  as  these  Federal  contracts  control  service  to  the  public 
of  a  State,  reference  is  made  to  a  later  chapter.4 

(3d  ed.) 

§  437.  Forfeiture. — Under  the  act  of  1891,  applying  to  irriga- 
tion, the  work  must  be  completed  within  five  years;5  under  the 
act  of  1897,  applying  to  livestock  reservoirs,  the  work  must  be 
completed  within  two  years.6  Under  the  act  of  March  4,  1911, 
for  power,  the  period  is  two  years.  If  not  completed  on  time,  the 
Interior  Department  cannot  extend  the  time  to  the  disadvantage 
of  an  intervening  adverse  claim ; 7  nor,  on  the  other  hand,  can  the 
Interior  Department  itself  declare  a  forfeiture,  since  it  is  ruled 
that,  by  approval  by  application,  a  vested  right  has  passed,  and 
the  Interior  Department  loses  jurisdiction,  nor  can  the  Interior 
Department  treat  it  as  null  and  approve  another  person's  appli- 
cation for  the  same  reservoir  site;  but  the  Interior  Department 
will  have  suit  brought  in  court  to  declare  the  forfeiture.8  The 
same  is  ruled  where  application  has  been  approved  by  mistake.9 
The  suit  may  be  brought  by  the  attorney  general  of  the  United 
States10  without  special  act  of  Congress  so  instructing,  and 
without  the  necessity  for  an  act  expressly  declaring  the  forfeiture 
by  congressional  action.11  Between  private  parties,  perhaps,  the 
privileges  will  be  held  forfeited  in  a  State  court  in  a  suit  between 

4  Infra,  sees.  1260  et  seq.,  1323.  266,  30  Sup.  Ct.  Rep.  97,  54  L.  Ed. 

5AC.  March  3.  1891,  sec.  20.  19°- 

a   A    n   -d  u  iQ    100-7    oo  <u-0+  u  United  States  v.  Whitney  (Idaho). 

,«!  A«  T  F<*™ary  ^  1897'  29  Stat       176  Fed.  593,  saying:    "This  require- 
484;  38  Land  Dec.  175.  ment   being  ^   £  ^^  of   J^ 

1  38  Land  Dec.  175,  under  the  live-  dition  subsequent,  the  rule  undoubt- 
stock  act.  See,  also,  Anderson  v.  edly  is  that  failure  to  comply  there- 
Spencer,  38  Land  Dec.  338,  under  the  wjth  does  not  operate  ipso  facto  to 
acts  of  1891  and  1905.  devest  the  grantee  of  the  title  and 

8  38  Land  Dec.  211 ;  38  Land  Dec.  reinvest    the    grantor    therewith,    but 
493.     "Twenty-seven   civil   suits   were  that  to  be  effectual,  the  default  must 
recommended  for  the  setting  aside  of  be  followed  with  a  declaration  of  for- 
grants  of  rights  of  way  over  the  pub-  feiture  by  some  competent  authority, 
lie     domain     for     reservoirs,     canals,  and,  the  grant  here  being  of  a  public 
ditches,   etc.     Investigations   are   now  nature,  such  declaration  can  be  made 
in  progress,  involving  all  such  grants  only  by  an  act  of  Congress,  or  in  an 
heretofore  approved  for  such  purposes,  appropriate  judicial  proceeding,"  and 
with  a  view  of  bringing  civil  action  holding  congressional  action  not  neces- 
against    all    grantees    where    the    evi-  sary. 

dence   shows   misuse,   nonconstruction,  There  seems  some  inconsistency  be- 

or  abandonment   of   such   privileges."  tween  the  above   authorities   and   the 

Page  9  of  Report  for  1910  of  Com-  ruling  in  United  States  v.  Rickey,  164 

mis?ioner  of  General  Land  Office.  Fed.  496,  holding  that  until  the  work 

9  Kern  River  Co.,  38  Land  Dec.  302.  is  completed  the  right  falls  ipso  facto 

10  33   Land  Dec.  469;   Rio  Grande       if  the  land  is  withdrawn  for  the  Rec- 
ete.  Co.  v.  United  States,  215  U.  S.      lamation  Service. 


468  (3ded.)     Pt.  III.     THE  LAW  OF  PRIOR  APPROPRIATION.         §438 

private  parties  without  any  special  action  to  declare  the  for- 
feiture where  the  claimant  has  also  lost  his  water  appropriation 
according  to  State  law ; 12  that  is,  these  special  privileges  prob- 
ably fall  with  the  ordinary  rights  when  the  latter  fall  under  local 
law.  But  it  is  recently  held  that  a  private  party  cannot  raise  the 
question.13 

(3d  ed.) 

§  438.  Conflicts  With  Settlers. — Questions  arising  out  of  con- 
flicts with  settlers  have  been  already  considered.14 

(3d  ed.) 

§  438a.  Water-power  Regulations  of  1911  of  the  Forest 
Service. — Since  the  foregoing  was  written  the  Forest  Service  has 
issued  a  Water  Power  Use  Book  for  1911.15  As  copies  may  be 
obtained  upon  application  to  the  Forest  Service,  and  as  the 
forms  prescribed  therein  are  printed  hereafter,16  the  present  sec- 
tion endeavors  to  state  the  substance  of  the  new  requirements  as 
briefly  as  possible. 

Permits  must  be  obtained.  No  application  will  be  received  for 
land  within  an  existing  project.17 

"Noncommercial"  works  (operating  one's  own  mines,  one's 
own  mills,  one's  own  irrigation  requiring  power,  temporary  power 
in  constructing  permitted  works,  municipal  plants,  and  other  uses 
hereafter  to  be  named  as  such  by  the  Secretary  of  Agriculture)18 
will  be  granted  permits  on  application  to  the  district  forester, 
and  will  not  be  charged  for.19  If  under  one  thousand  horse-power 
they  must  be  accompanied  by  triplicate  maps,  field-notes,  evidence 
of  water-right,  statements  of  amount  of  water  available,  of  avail- 
able power,  etc. ;  but  no  contract  stipulations  are  required.20  If 
over  one  thousand  horse-power,  they  must  execute  stipulations  to 
pay  for  timber,  protect  the  forests,  etc.21  "  Water-power  works 
of  a  semi-commercial  nature  will  be  regarded  as  commercial  ex- 

12  Baldridge  etc.  Co.  v.  Leon  etc.  ing."     O'Riley  v.  Noxon  (Colo.),  113 
Co.,  20  Colo.  App.  518,  80  Pac.  477.  Pac.  486. 

13  "If   the   rights   acquired   by   the  14  Supra,  sees.  258,  263. 
Tarryall  Company  under  the  approval  15  Issued  December  28,  1910. 
of  its  reservoir   site  were  subject   to           16  Infra,  sec.  1459. 
forfeiture  by  its  failure  to  construct           17  Reg.  L.  4. 

the  reservoir  within  the  period  of  five  J8  Reg.  L.  2. 

years   fixed   by   law,   it,   or   its   trans-  19  Reg.  L.  2. 

feree,  nevertheless,  had  the  right  of  20  Reg.  L.  11  and  L.  12. 

possession   thereunder  until  such   for-  23  Reg.  L.  12. 

feiture  is  declared  in  a  proper  proceed- 


§438a    Cfc.  19.    HOW  APPROPRIATED— FEDERAL  SYSTEM.    (3de.d.)  469 

cept  in  so  far  as  a  satisfactory  showing  of  partial  noncommercial 
use  may  be  made  to  the  district  forester  by  the  permittee. ' '  Com- 
mercial uses  are  defined  as  all  other  than  above  specified.22 

Permits  are  to  be  issued  as  preliminary  and  final.  The  prelimin- 
ary application  and  permit  are  covered  by  Reg.  L.  9.  The  prelimin- 
ary application  must  be  filed  with  the  district  forester,  consisting 
of  an  application  in  triplicate  on  Form  58  ;23  a  map  (with  nega- 
tive or  blue-prints)  showing  the  entire  project  in  detail,  etc.,  with 
statements  of  available  wTater,  head,  amount  of  power,  and 
"prima  facie  evidence  in  triplicate,  certified  by  the  proper  public 
officer,  of  the  appropriation  by  the  applicant  or  its  predecessors 
of  all  the  water  which  it  is  proposed  to  use  in  the  operation  of 
the  works  applied  for."  Statement  is  recommended  to  be  ob- 
tained from  the  Reclamation  Service  that  its  projects  will  not  be 
impaired.24  "An  application  for  a  preliminary  water-power  per- 
mit filed  with  the  district  forester  shall  not  be  complete  until 
the  last  map  or  paper  required  by  this  regulation  shall  have  been 
filed  in  the  form  prescribed."25  The  preliminary  application  and 
permit  are  to  cover  the  time  while  maps,  plans  and  other  data  are 
being  prepared  for  a  final  application,  but  give  no  right  to  begin 
actual  construction  work  except  in  exceptional  cases.1 

22  Reg.  L.  2.  mit  without  initial  and  with  a  letter 

23  foifra,  sec.  1459.  to  the  district  forester  explaining  in 

24  See,  also,  W.  P.  Use  Bk.,  p.  69.  •  detail  his  reasons  for  not  approving. 

25  In    regard    to    issuing    the    pre-  "Upon    the    return    of    the    permit 
liminary  permit:   "Upon  receiving  the  from  the  chief  engineer,  if  approved, 
district  engineer's  report,  the  district  the    district    forester    will    prepare    a 
forester   will    prepare    five    copies    of  letter  of  transmittal    (Form   861)    in 
permit  on  form  59.     If  the  applica-  triplicate,  stating  the  amount  of  the 
tion  is  approved  by  the  district  for-  charge.     The  original  will  be  sent  to 
ester   and   the   district   engineer   they  the  applicant,  and  upon  receipt  of  no- 
will  initial  the   permit.     The   district  tice  from  the  district  fiscal  agent  that 
forester  will  send  the  chief  engineer  deposit    has    been    made    the    district 
a   copy   of   the   complete   application,  forester  will  forward  to   the  forester 
except  the  certificate  of  water  appro-  one  copy  of  the  complete  application, 
priation,  the  original  map  on  tracing  one  copy  of  the  report  of  the  district 
linen,    one    copy    of    the    district    en-  engineer,  the  original,  and  one  copy  of 
gineer's  report,  the  original,  and  one  the    permit,    and    the    correspondence 
copy   of    the   permit,   and   the    corre-  file. 

spondence  file.  "When  the  original  permit  has  been 

"The   chief   engineer   will    examine  signed  by  the  secretary,  the  forester 

all  the  papers  received  from  the  dis-  will  retain  one  copy  of  the  permit  and 

trict  forester,  and  if  he  approves  the  one  print  map  of  location  and  return 

application,  he  will  initial  the  original  all   the   other   papers   in   the   case   to 

permit  and  return  it  with  the  original  the    district    forester."     W.    P.    Use 

map  on  tracing  linen  and  the  corre-  Book  (1911),  pp.  65,  66. 

spondence  file  to  the  district  forester.  1  Reg.   L.    1   and   W.   P.   Use   Bk. 

If  he   does  not  approve  the   applica-  (1911),  p.  62. 
tion,  he  will  return  the  original  per- 


470  (3d  ed.)     Pt.  III.     THE  LAW  OF  PEIOR  APPROPRIATION.       §  438a 

The  final  application  and  permit  are  covered  by  Reg.  L.  10. 
Application  must  be  filed  with  the  district  forester,  consisting  of 
an  application  in  triplicate  on  a  prescribed  form;  maps  (with 
negative  or  two-print  copies)  with  affidavits  attached;  maps  for 
each  project  showing  complete  details  (specified  at  length) ; 
separate  maps  for  each  reservoir;  separate  maps  for  each  conduit 
with  drawings  of  types  used ;  separate  maps  for  each  power-house 
with  types  of  generators;  maps  of  transmission  lines;  field-notes 
in  triplicate,  verified;  detailed  estimates  in  triplicate  of  power 
output;  of  water  appropriated,  natural  flow,  storage,  heads, 
etc.;  evidence  from  public  officer  of  water-right,  with  any  trans- 
fers, etc.;  articles  of  incorporation,  etc.;  and  various  other  mat- 
ters. "An  application  for  final  permit  filed  with  the  district 
forester  shall  not  be  complete  until  the  last  map  or  paper  re- 
quired by  this  regulation  shall  have  been  filed  in  the  ferm  pre- 
scribed."2 A  final  application  relates  back  to  date  of  prelimin- 
ary application.3  Changes  during  construction  require  amended 
filings.4  Extensions  of  time  for  beginning  and  completing  con- 
struction require  written  approval  of  the  Secretary  of  Agricul- 
ture, granted  only  for  special  and  peculiar  cause.5  False  certifi- 
cates are  visited  with  the  penalty  that  the  officials  may  refuse 
thereafter  to  receive  papers  executed  by  such  person.6  The 
officials  shall  watch  the  progress  of  the  work.7  If  all  require- 

2  Reg.  L.  10.  should    designate    the    several    items 

3  W.  P.  Use  Bk.  (1911),  p.  67.  necessary  for  filling  the  blanks  of  the 
Upon    final    application    it    is    di-       stipulation  and  permit,  a  recommenda- 

rected,  inter  alia:  "After  the  comple-  tion  of  the   gross   power   capacity  to 

tion  of  the  examination  and  the  collee-  be  inserted  in  the  stipulation,  and  such 

tion  of  the  data,  the  district  engineer  other   recommendations  as   may   seem 

will  submit  a  report  in  triplicate  to  desirable."     W.  P.  Use  Book  (1911), 

the  district  forester.     The  report  will  p.  70. 

describe    the   project    in   detail,   with  4  Reg.  L.  14.     See,  also,  W.  P.  Use 

its  relation  to  other  projects  of  the  Bk.  (1911),  pp.  62-64;  68. 

same    or    allied    or    competing    com-  5  Reg.  L.  15. 

panies^  state  whether  the  project  com-  6  Reg.  L.  17. 

prehends   a   full   development   of   the  7  "In   order   that   the   district   for- 

available  power;   describe  the  market  ester  may  know  whether  the  terms  of 

for  the  power  and  the  general  market  the  stipulation  and  permit  are  being 

conditions   in   the   district   so    far   as  complied  with,   the   supervisor  should 

such  information  is  available,  and  the  keep    himself    fully   informed   of   the 

relation  of  the  power  development  to  progress   of  the  work.     He   shall  im- 

other    interests,    particularly    agricul-  mediately  upon  the  date  specified  in 

tural.     The  report  should  present  de-  the  stipulation  upon  which  construc- 

tailed    estimates    of    the    amount    of  tion  should  begin  make  an  examina- 

power  that  will  probably  be  developed  tion   and   report   to   the   district   f  or- 

and    the    complete    data    upon    which  ester    whether    the    construction    has 

Buch  estimates  are  based.     The  report  begun.     The  supervisor  should  ascer- 


§438a    Ch.  19.    HOW  APPKOPRIATED— FEDERAL  SYSTEM.    (3ded.)  471 

ments  are  complied  with,  priority  dates  from  filing  the  last  paper 
going  to  make  up  the  preliminary  application.8  Water-right 
questions  are  declared  outside  the  forestry  jurisdiction,  and  will 
not  be  considered  in  issuing  permits.9 

Upon  issuance  of  final  permit  a  stipulation  must  be  executed 
within  ninety  days.10  Its  provisions  are  covered  in  Reg.  L.  13, 
viz.,  to  pay  for  timber  cut,  injured  or  destroyed ; u  to  pay  for 
damage  from  flood,  seepage,  breaks,  or  other  damage  to  forests; 
to  dispose  of  brush  or  refuse ;  to  keep  land  along  transmission 
line  cleared;  protect  telephone  crossings;  to  prevent  injury  to 
grazing  stock;  to  prevent  and  stop  forest  fires  near  the  lands;  to 
rebuild  roads  destroyed  or  injured  by  the  works;  to  maintain 
crossings  over  conduits ;  to  sell  power  to  the  United  States  when 
required  (under  certain  conditions)  ;  to  begin  and  diligently  com- 
plete the  work  proposed,  within  a  period  fixed  in  permit ;  to  pay 
the  charges  or  royalty ;  to  operate  continuously  unless  shut-down 
is  sanctioned  by  the  Secretary  of  Agriculture ;  not  to  sell  out  to  a 
monopoly;12  to  maintain  measuring  weirs,  etc.,  and  keep  water 
records  *  to  keep  the  books  and  records  of  the  permittee  open  at 
all  times  to  inspection  of  the  officials;  to  make  annual  return  to 
the  Secretary  of  Agriculture  of  matters  required  by  him. 

The  term  of  permit  will  usually  not  exceed  two  years  for  pre- 
liminary permits.13  Final  permits  will  cover  fifty  years  unless 
sooner  revoked,  etc.14  Revocation  is  to  be  made  by  a  letter  pre- 
pared by  the  district  forester  and  signed  by  the  Secretary  of 
Agriculture  and  sent  to  the  permittee.15  If  a  permit  is  revoked, 
no  application  for  a  like  use  will  be  received  within  one  year  from 
the  same  party.16  Upon  a  sale  or  transfer  of  the  plant,  the  Secre- 
tary of  Agriculture  has  discretion  to  issue  a  permit  to  the  trans- 
feree.17 

tain    from    time    to    time    thereafter  8  Reg.  L.  3.     See,  also,  p.  64, 

whether    the    works    are    being    con-  9  Keg.  L.  5. 

structed    with    due    diligence    and    in  10  W.  P.  Use  Book  (1911),  p.  73. 

substantial  agreement  with  the  maps  U  Amount  to  be  estimated  by  the 

and  plans,  and  in  case  of  doubt  should       ranger.     Page  69. 

call  for  an  examination   by   the   dis-  12  Stipulation    20.     See    infra,   sec. 

trict  engineer.     He   shall   also   imme-       1459. 

diately   on   the   date   specified   in   the  I3  Page  61. 

stipulation      upon      which      operation  14  Reg.  L.  6. 

should    begin    make    an    examination  15  Page  63. 

and    report    to    the    district    forester  18  Reg.  L.  3. 

whether   such    operation    has   begun."  17  Reg.  L.  16. 

W.  P.  Use  Book  (1911),  pp.  76,  77. 


472  (3ded.)     Pt.  III.     THE  LAW  OF  PRIOR  APPROPRIATION.         $439 

Royalty  charges  are  covered  by  Reg.  L-.  7  and  L.  8.  They  are 
to  be  ten  cents  per  horse-power  the  first  year  (beginning,  it 
appears,  from  the  granting  of  preliminary  permit  and  not  from 
date  of  operating  the  plant)  ; 18  increasing  ten  cents  per  year  until 
one  dollar  is  reached  the  tenth  year,  and  remaining  one  dollar 
per  horse-power  thereafter.  Being  in  arrears  sixty  days  voids  a 
preliminary  permit,  and  arrears  for  six  months  voids  a  final  per- 
mit.19 These  charges  are  to  be  figured  upon  the  "net  power 
capacity";  and  Reg.  L.  8  prescribes  how  this  is  to  be  calculated. 
The  average  annual  station-output  of  horse-power  is  to  be  esti- 
mated from  all  water  available,  etc. ;  and  deductions  therefrom 
are  to  be  made  for  unreserved  or  patented  lands  involved ;  also  a 
deduction  (not  exceeding  twenty-five  per  cent)  calculated  by 
multiplying  the  square  of  the  miles  of  primary  transmission  by 
the  constant  factor  .001 ; 20  and  a  deduction  for  such  part  of  the 
power  as  the  permittee  uses  for  "noncommercial  uses."21  A 
redetermination  of  the  gross  capacity  may  be  ordered  any  time 
after  ten  years,  and  "The  decision  of  the  Secretary  of  Agricul- 
ture shall  be  final  as  to  all  matters  of  fact  upon  which  th*e  deter- 
mination of  the  gross  power  capacity  of  the  works  and  the  storage 
power  of  the  reservoir  or  reservoirs  depend."22 


C.     RELATION  OF  THE  NEW  FEDERAL  SYSTEM  TO  THE  ACT  OF 

1866  AND  LOCAL  LAW. 
(3d  ©d.) 

§  439.  Upon  Reserved  Land.— The  act  of  1866,  sections  2339 
and  2340,  United  States  Revised  Statutes,  is  a  right  of  way  act. 
Its  construction  was  early  settled  as  a  grant  of  reservoir  sites 

18  Page  62.  ning  of  operation,  when  the  full  rate 
,„  -r,        T     „                                                 is  charged."     Pages  71,  72. 

19  EeS"  L-  7"  22  Rfg.  L.  8. 

20  Probably    referring    to    loss    in  "Permits     for     transmission     lines 
transmission.  which   are   not   a   part   of    a   general 

21  "The    gross    power    capacity    as  power  project  covered  by  a  power  per- 
finally    determined    should    represent  mit    will    be    issued    by    the    district 
that  extent  of  development  which  good  forester.     A   fee   will   be   charged   of 
business  judgment  would  warrant,  if  five  dollars  per  annum  for  each  mile 
a  ready  market  were  available  for  all  of  national  forest  land  crossed  by  such 
the  power.     Full  consideration  of  the  lines,  and  the  minimum  fee   for  any 
fact    that    such    market    may    not    be  one    permit  •  will    be    five    dollars   per 
available   at   the   outset   is   taken   by  annum.     Applications  for  such  trans- 
the    provision    of   very    low    rates    in  mission  line   permits  will  be   filed  in 
the  earlier  years,  gradually  increasing  the  office  of  the  supervisor,  and  will 
with  the  probable  increase  of  market  consist  of  tracings  and  field-notes  of 
until  the  tenth  year  after  the  begin-  survey,  both  in  the  form  and  with  the 


§439      Ch.19.    HOW  APPROPRIATED— FEDERAL  SYSTEM.    (3ded.)  473 

and  rights  of  way  upon  public  land  subject  to  local  law  alone.23 
It  has  never  been  expressly  repealed. 

Upon  reserved  or  withdrawn  public  land,  the  Land  Office  and 
the  Forest  Service  consider  it  repealed  by  implication;  and  the 
Federal  requirements  above  considered  have,  it  is  evident,  com- 
pletely taken  the  matter  in  hand  and  displaced  local  law  so  far 
as  concerns  rights  of  way  and  reservoir  sites.  No  distinction  is 
made  between  reservations  created  for  exclusive  occupancy  such 
as  military  and  Indian  reservations,  and  reservations  not  in  ex- 
clusive occupancy ;  the  acts  authorizing  reservation  or  withdrawal 
of  land  are  considered  to  impliedly  repeal  the  act  of  1866  and 
local  law  for  that  land  henceforth.  The  Land  Office  has  ruled,  in 
a  case  arising  in  California,  that  the  act  of  1866  "does  not  authorize 
the  construction  of  a  right  of  way  across  reservations  of  the  United 
States,  but  seems  to  be  limited  to  the  public  land, ' '  and  held  that  the 
act  of  1866  is  not  in  force  within  forest  reserves.24  In  a  recent  case 
in  the  United  States  district  court  in  California,  on  a  preliminary 
hearing  before  the  commissioner,  he  ruled  that  the  act  of  1866  is  no 
longer  in  force  for  either  the  reserved  or  unreserved  land ;  but  there 
has  been  no  decision  yet  by  the  court.25  The  Forest  Service  takes 
the  same  position  regarding  its  lands.28 

affidavits  and  certificates  required  for  cept  by  permit,  and  that  confining  the 

such  lines  when  part  of  a  water-power  pole-line  to  a  State  highway  makes  no 

application.     (Reg.    L.   10.)"     W.   P.  difference.     This    case    has    been    the 

Use  Bk.  (1911),  p.  80.  subject    of    charges    back    and    forth 

23  Supra,   sees.   92   et  seq.,   151   et  between  the  projectors  and  the   for- 
seq.,  197  et  seq.  estry,  and   the  House  of  Representa- 

24  Kern   River   Co.,    38   Land   Dec.  Jj,ves  ,iD-  191J  PaSS6d'  f  Vtbe  T^*  ?* 
302.     It  has  also  ruled,  however,  that  thef  claimant^  a  resolution  to  investi- 
a    foreign   corporation    cannot    get   a  £ate"     ff_H-.  Doc-   No.    1424,   61st. 
Federal  right  of  way  without  comply-  £P'^a  ??f  Jlon>     ,   . 

ing  with  the  State  corporation  laws.       ..  26  .The  following  letter  to  the  an- 
38  T  a    1  D  r   74  thor  is  printed  here  with  permission: 

See  United   States  v.   Conrad  Inv.  "Office  of  the  Forester. 
Co.,  156  Fed.  123,  seeming  to  regard 

the  act  of   1866  as  still  in  force  on  "Washington,  February  11,  1910. 

reserved  land,   so   far  as  the   dam  is  "Your  letter  of  January  4th  is  re- 

not  so  placed  as  to  interfere  with  gov-  ceived.     The   questions  you   propound 

ernment   occupancy    (p.   128;   but  see  concerning   the   effect   of   the   act   of 

p.  131).  '  See,  also,  Denver  Co.  v.  Ry.  1866    (U.   S.   Rev.   Stats.,   sees.   2339, 

Co.,  30  Colo.  204,  69  Pac.  568,  60  L.  2340)    are    recognized    here   as    pecu- 

Rv  A.  383.  liarly  difficult  ones 

25  United   States  v.  Hydro-Electric  "The  act  of  1866  does  not  in  terms 
Co.  (report  of  Master  in  Chancery  H.  apply  to  reserves  of  any  kind.     The 
M.    Wright,    Oct.    17,    1910),    ruling  free    and    uncontrolled    location    of 
that   a   power   right   of   way,   though  rights    of   way   for   ditches,    etc.,    is 
crossing    only    a    small    corner    of    a  inconsistent  with  the  proper  control 
forest  reserve,  cannot  be  acquired  ex-  and  regulation  of  national  forests  by 


474   (3d  ed.)     Pt.  III.     THE  LAW  OF  PRIOR  APPROPRIATION.         §  440 

In  California,  concerning  appropriation  in  national  reserves,  it 
is  provided  1  that  the  notice  of  appropriation  shall  state  that  the 
appropriation  is  within  such  reserve,  and  the  claimant  shall  then 
make  and  diligently  prosecute  an  application  to  the  Federal 
authorities  for  a  permit,  and  shall  commence  work  within  sixty 
days  after  obtaining  it,  and  prosecute  the  work  thence  diligently 
to  completion  under  the  Federal  regulations.  In  other  words. 
California  has  left  the  entire  matter  of  acquisition  of  rights  of 
way  within  forest  reserves  (whether  the  act  of  1866  were  there  in 
force  or  not)  with  the  Forest  Service.2  Hence  cases  arising  in 
California  do  not  actually  involve  the  question  how  far  the  act  of 
1866  is  in  force  within  reserves. 


(3d  ed.) 

§  440.  Upon  Unreserved  Land. — Acts  creating  reservations  or 
authorizing  withdrawals  of  course  would  not  be  an  implied  repeal 
of  the  act  of  1866  for  unreserved  or  unwithdrawn  land.  As  to 
such  land  there  is  nevertheless  some  contention,  under  stress  of 
the  recent  change  of  Federal  policy  from  "development"  to 
"conservation,"  that  an  implied  repeal  exists  there  also,  owing 
to  the  right  of  way  acts  passed  since  1866.  At  present,  however, 
the  weight  of  authority  is  against  the  contention. 


the  department.  The  act  of  1891, 
which  does  apply  to  reserves,  pro- 
vides, with  reference  to  irrigation 
rights  of  way,  that  they  shall  not 
'be  so  located  as  to  interfere  with 
the  proper  occupation  by  the  govern- 
ment of  any  such  reservation.'  The 
act  of  June  4,  1897  (30  Stat.  11), 
which  we  call  the  Forest  Administra- 
tive Act,  authorizes  the  Secretary  of 
the  Interior  (now  Agriculture)  to 
'make  such  rules  and  regulations  and 
establish  such  service  as  will  insure 
the  objects  of  such  reservation,  namely, 
to  regulate  their  occupancy  and  use 
and  to  preserve  the  forest  thereon 
from  destruction.'  These  and  other 
statutory  provisions,  especially  as 
construed  by  Attorneys  General  Moody 
and  Bonaparte  (22  Op.  13,  26  Op. 
421),  show  a  legislative  intent  that 
the  creation  of  a  national  forest  shall 
remove  the  lands  embraced  therein 
from  the  operation  of  the  right  of  way 
provisions  of  the  act  of  1866. 

"The  Forest  Service  has  no  juris- 
diction   over    unreserved    lands,    and, 


of  course,  has  had  no  occasion  to  form 
an  opinion  as  to  whether  the  act  of 
1866  remains  in  force  thereon. 

"I  may  say  further  that  this  de- 
partment some  time  ago,  in  determin- 
ing questions  coming  before  it,  reached 
the  conclusion  that  the  act  of  1866 
does  not  authorize  the  use  of  the 
lands  of  the  United  States  for  the 
conveyance  of  water  for  the  genera- 
tion of  electricity  for  commercial 
power  purposes.  We  hold  that  such  a 
purpose  was  not  then  contemplated  by 
Congress  and,  besides,  under  estab- 
lished rules  of  construction,  is  not 
within  the  terms  of  the  grant.  More 
recently  the  Department  of  the  In- 
terior in  two  cases  reached  the  same 
conclusion.  [Citing  rulings  below 
quoted.] 

"Very  truly  yours, 
"HENRY  S.  GRAVES,  Forester." 

1  Civ.  Code,  sec.  1422. 

2  See  Wishon  v.  Globe  etc.  Co.,  158 
Oal.  137,  110  Pac.  290. 


§440      Ch.  19.    HOW  APPROPRIATED— FEDEBAL  SYSTEM.    (3ded.)  475 

The  later  Eight  of  Way  Act  of  1891  was,  at  the  time  of  its 
passage,  intended  to  aid  large  enterprises  by  providing  an  alter- 
native and  securer  method  than  the  act  of  1866  afforded.  The 
act  of  1866  made  the  grant  upon  simply  taking  possession  under 
local  law.  The  later  act  gave  capital  the  additional  security  of 
a  Federal  record  and  documentary  title,  without  making  this 
obligatory  upon  appropriators ;  for  ordinary  purposes  the  act  of 
1866  was  generally  accepted  at  the  time,  and  for  large  installations 
additional  security  was  to  be  accorded.  While  Congress  has  never 
attempted  to  grant  patents  to  water-rights,  there  is,  in  the  later 
Right  of  Way  Acts,  some  approach  to  carrying  to  patent,  as  con- 
cerns right  of  way,  the  grant  contained  in  the  act  of  1866,  but  not 
displacing  that  act  as  a  grant  in  cases  of  small  enterprises,  nor,  in 
fact,  any  enterprises  which  were  satisfied  to  rest  under  the  con- 
firmation contained  in  the  act  of  1866,  without  going  to  patent. 
This  history  is  traced  fully  in  the  historical  chapters.  The  supreme 
court  of  New  Mexico  recently  said:  3  "It  has  long  been  the  policy 
of  the  government  to  encourage  irrigation  in  the  arid  and  semi- 
arid  West.  Congress  in  its  wisdom  has  enacted  such  laws  as  will 
enable  rights  of  way  to  be  acquired  for  such  irrigation  works  over 
the  public  lands,  and  thus  encourage  the  development  of  the  coun- 
try. The  tendency  has  been  toward  more  liberal  laws  in  that  re- 
gard, and  it  is  a  matter  of  common  knowledge  that  in  this  territory 
it  has  been  the  custom  for  years  to  enter  on  the  unsurveyed  public 
lands  of  the  United  States  and  construct  such  ditches,  canals,  pipe- 
lines, and  reservoirs  as  were  necessary  to  put  the  waters  of  the 
streams  to  a  beneficial  use  for  agricultural  and  kindred  purposes. 
....  It  would  appear  as  a  serious  step  backward  to  now  hold  that 
such  irrigation  systems  could  not  be  constructed  and  rights  of  way 
acquired  upon  unsurveyed  land  without  first  seeking  the  consent  of 
the  Secretary  of  the  Interior,  thus  involving  long  and  tedious  de- 
lays, which  in  such  cases  would  be  absolutely  unavoidable  under 
the  law." 

Consequently  for  unreserved  land  it  is  ruled  that  failure  to 
comply  with  the  later  Right  of  Way  Acts  merely  results  in  a 
loss  of  the  additional  privileges;  the  right  of  way  or  reservoir 
site  nevertheless  vests  (subject  to  local  law)  under  the  act  of  1866, 

3  United    States   v.   Lee    (N.    M.),       1891.     See,  also,  supra,  ce.  5,  6;   es- 
110   Pac.   607,    a   case   arising   under      pecially  see.  92  et  seq. 
the  Right  of  Way  Act  of  March  3, 


476  (3d  ed.)     Pt.  III.     THE  LAW  OF  PRIOR  APPROPRIATION.         §  440 


whether  the  ditch  was  built  before  the  passage  of  the  later  act,4  or 
after,5  or  even  if  filings  were  attempted  under  a  later  act  but  re- 
jected by  the  Land  Office.6  For  unreserved  land  the  history  and 
the  present  state  of  the  authorities  is  that  the  later  Right  of  Way 
Acts  are  only  cumulative  to  the  act  of  1866  without  displacing  it; 
that  the  right  of  way  still  vests  (when  the  local  law  has  been 
complied  with)  under  the  grant  contained  in  the  act  of  1866,  if 
the  appropriator  does  not  insist  upon  the  added  privileges  of  the 
later  acts. 

In  a  ruling  of  the  Interior  Department  rendered  some  years  ago 
it  is  held  that  the  rights  of  claimants  under  section  2339  of  the 
Revised  Statutes  are  not  dependent  upon  the  later  Right  of 
Way  Acts,  nor  upon  an  approval  of  such  maps  or  filings  as  are  re- 
quired by  the  act  of  March  3,  1891.  "The  act  of  March  3,  1891, 
in  respect  to  this,  was  primarily  to  extend  to  such  claimants  the 
right  to  place  their  claims  of  record  with  the  Land  Department 


4  Lincoln  etc.  Co.  v.  Big  Sandy  Co., 
32  Land  Dec.  463.     The  claim  under 
Revised  Statutes,  2339,  was  for  a  ditch 
built  prior  to  the  act  of  1891. 

5  In  Cottonwood  etc.  Co.  v.  Thorn 
(1909),   39   Mont.  115,  104  Pac.   281 
(S.   C.,   101   Pac.   825,  indicates   that 
the  ditch  was  built  after   1891),  the 
Montana  court  said,  per  Mr.  Justice 
Smith,  that  the  act  of  1866,  "granted 
a  right  of  way  for  the  construction 
of   ditches   across  the  public   domain, 
and  that  the  respondent's  rights,  ac- 
quired   by    virtue    thereof,    were    not 
forfeited  by  a  failure  to  comply  with 
the  provisions  of  the  act  of  1891." 

6  Rasmussen .  v.    Blust    (1909),    85 
Neb.  198,  133  Am.  St.  Rep.  650,  122 
N.  W.  862. 

The  point  was  left  open  in  United 
States  v.  Rickey,  164  Fed.  496,  where 
it  was  held  that  a  reservoir  site  could 
not  be  acquired  under  the  act  of  1866 
after  the  site  is  expressly  reserved  by 
the  United  States  from  entry. 

Among  other  rulings  of  the  Depart- 
ment of  Interior  it  has  been  laid  down 
that  the  act  of  1866  was  not  repealed 
by  the  later  right  of  way  acts  (spe- 
cifically, the  act  of  1891),  Re  Cache 
Valley  Co..  16  Land  Dec.  192,  196; 
and  that  filings  under  the  later  acts 
(specifically  the  act  of  1891)  add 
nothing  to  a  right  of  way  confirmed 
under  the  act  of  1866  (Silver  Lake 


etc.  Co.  v.  City  of  Los  Angeles,  37 
Land  Dec.  152);  and  that  the  differ- 
ence between  the  act  of  1866  and  the 
act  of  1891  is  that  the  latter  requires 
approval  by  an  official  before  begin- 
ning work,  while  the  former  requires 
no  official's  approval,  but  merely  "ac- 
knowledges and  confirms"  after  the 
work  is  actually  completed.  Re  Mc- 
Millan Reservoir  Site,  37  Land  Dec.  6. 
See  generally,  Silver  Lake  etc.  Co. 
v.  City  of  Los  Angeles,  37  Land  Dec. 
152;  Re  McMillan  Reservoir  Site,  37 
Land  Dec.  6;  Lincoln  etc.  Co.  v. 
Sandy  etc.  Co.,  32  Land  Dec.  463; 
Re  Santa  Fe  etc.  R.  R.  Co.,  29  Land 
Dee.  213;  Re  South  Platte  etc.  Co., 
20  Land  Dec.  155;  Re  Cache  Valley 
Co.,  16  Land  Dec.  192;  Re  Pecos  Irr. 
etc.  Co.,  15  Land  Dec.  470,  578;  Bald- 
ridge  etc.  Co.  v.  Leon  etc.  Co.,  20  Colo. 
App.  518,  80  Pac.  477;  Whitmore  v. 
Pleasant  Valley  Co.,  27  Utah,  284,  75 
Pac.  748;  Nippel  v.  Forker,  9  Colo. 
App.  106,  47  Pac.  766;  S.  C.,  26  Colo. 
74,  56  Pac.  577;  United  States  v.  Con- 
rad Inv.  Co.,  156  Fed.  123;  United 
States  v.  Rickey,  164  Fed.  496;  Cot- 
tonwood D.  Co.  v.  Thorn,  39  Mont. 
115,  101  Pac.  825;  Same  v.  Same.  104 
Pac.  281 ;  Rasmussen  v.  Blust,  85  Neb. 
198,  133  Am.  St.  Rep.  650,  122  IN.  W. 
862;  United  States  v.  Lee  (N.  M.), 
110  Pac.  607. 


§441      Ch.  19.    HOW  APPROPRIATED— FEDEBAL  SYSTEM.    (3ded.)  477 

for  their  better  protection.  It  may  be,  too,  that  it  enlarged  the 
privileges  conferred  by  section  2339  of  the  Revised  Statutes,  in  that 
it  gave  the  right  to  the  use  of  fifty  feet  of  land  on  each  side  of  the 
marginal  limits  of  canals,  ditches  and  reservoirs — a  privilege  not 
carried  by  said  section — but  however  this  may  be,  it  surely  did  not 
operate  to  make  the  continued  enjoyment  of  rights  conferred  by 
said  section  dependent  upon  the  filing  of  the  maps  provided  for  in 
the  act."Ca 


(3d  ed.) 

§  441.    Recent  Tendency  Away  from  the  Act  of  1866.— But 

the  policy  of  development  under  local  law  enacted  by  the  act  of 
1866  is  inconsistent  with  the  policy  of  Federal  conservation  as 
instituted  by  Mr.  Pinchot  and  the  Forest  Service.  Consequently 
the  contention  first  mentioned  (that  the  act  of  1866  is  not  in  force 
for  unreserved  land  any  more  than  for  reserved  land)  is  gathering 
force  in  the  Land  Office.7  Recently  the  Interior  Department  has 
ruled  that  the  .act  of  1866  never  applied  initially  (neither  upon 
reserved  nor  unreserved  land)  to  rights  of  way  for  power  pur- 
poses.8 Heretofore  the  rulings  of  half  a  century  under  the  act 


6a  Lincoln  Co.  v.  Big  Sandy  Co., 
supra. 

7  The  writer  received  the  following 
letter  from  the  General  Land  Office  a 
few  years  ago: 

"General  Land  Office, 
"Washington,  D.  C.,  March  26,  1908. 

"In  reply  to  your  letter  of  March 
12,  1908,  you  are  advised  that  the 
question  as  to  whether  rights  of  way 
may  be  obtained  under  Sections  2339 
and  2340  of  the  Eevised  Statutes  since 
the  passage  of  the  act  of  March  3, 
1891  (26  Stat.  1095),  apparently  has 
not  been  decided  specifically  by  the 
Department,  bat  it  may  be  in  a  short 
time. 

"It  is  better  for  the  applicant  in 
every  case  who  contemplates  construct- 
ing works  for  irrigation,  etc.,  in- 
volving a  large  expenditure  of  money 
to  have  some  record  evidence  of  his 
right  of  way,  such  as  is  the  case  when 
applications  are  filed  under  the  provi- 
sions of  the  right  of  way  acts. 
No  more  definite  information  as  to 
whether  parties  must  file  under  the 
act  of  1891  or  whether  they  may 


construct  and  obtain  rights  under  said 
sections  can  be  given  at  this  time. 
For  regulations  under  the  act  of 
March  3,  1891,  see  Vol.  34  of  the 
Land  Decisions,  page  212. 
"Very  respectfully, 

'^S.  V.  PROUDFIT, 
"Assistant  Commissioner." 

8  In  Kern  Eiver  Co.,  38  Land  Dec. 
302,  the  Land  Office  ruled:  "It  is  too 
obvious  for  argument  that  in  1866, 
the  date  of  the  original  act  consti- 
tuting this  law,  Congress  did  not  con- 
template power  companies  because 
they  were  not  in  existence  at  that 
time."  In  Sierra  Buttes  Co.,  Nov.  19, 
1909  (not  officially  reported),  the  act 
of  1866  is  said  to  be  restricted  mainly 
to  mining  uses,  relying  upon  a  passage 
in  Jennison  v.  Kirk,  98  U.  S.  453, 
25  L.  Ed.  240,  4  Morr.  Min.  Rep.  504, 
where  the  court  had  merely  held  that 
the  act  of  1866  conferred  no  rights 
to  enter  private  or  occupied  land.  See, 
also,  Montana  Water  Electric  Power 
&  Mining  Co.,  decided  by  the  Interior 
Department  November  12,  1909  (not 
reported). 


478  (3d  ed.)     Pt  III.     THE  LAW  OF  PBIQB  APPROPRIATION.         §  442 

of  1866  have  been  that  it  applied  to  any  beneficial  purpose,9  for 
the  sake  of  developing  the  resources  of  the  country. 

(3d  ed.) 

§  442.  Conclusion. — The  Federal  system  here  considered  is 
just  developing.  Though  nominally  based  only  upon  reservoir  sites 
and  rights  of  way,  yet  as  waters  can  seldom  be  used  without  ditches 
or  other  conduits  (that  is,  a  right  of  access  10),  it  has  many  features 
of  a  body  of  water  law  also.  In  any  event,  it  leaves  room  for 
much  conflict  between  the  Forest  Service  and  the  State  Engineer 
and  the  general  State  water  administrations,  upon  matters  so 
intimately  connected  as  rights  of  way  and  water-rights.  In  this 
matter,  as  throughout  the  policy  of  conservation,  the  conflict  be- 
tween State  and  Federal  jurisdiction,  elsewhere  considered,11  is 
becoming  marked;  and  the  law  is  in  an  uncertain  and  formative 
stage. 

The  foregoing,  regarding  acquisition  of  rights,  is  a  different 
question  from  the  regulation  of  service  rendered  to  the  public.12 

9  Supra,  sec.  378,  beneficial  purpose.          n  Supra,  c.  8. 

10  Supra,  sec.  54.  12  Infra,  sec.  1260  et  seq. 

§§  443-451.     (Blcmk  numbers.) 


§§452,453  Ch.20.    MEANS  OF  USE.  (3ded.)479 


CHAPTER  20. 

OF     USE— RESERVOIRS,     DITCHES,     FLUMES, 
PIPES  AND  OTHER  STRUCTURES. 

A.  AETIFICIAL  WATER  CONDUITS,  ETC. 
§  452.     General. 

§  453.  Use  without  diversion. 

§  454.  Use  in  artificial  water  structures — Ditches,  flumes,  pipes  in  general. 

§  455.  The  ditch,  etc.,  is  an  easement. 

§  456.  Ditch  and  water-right  distinguished. 

§  457.  Water  in  artificial  waterworks  or  structures. 

B.  USE  OF  AETIFICIAL  CONDUITS,  ETC. 
§  458.     Contracts  concerning  ditches. 

§  459.     Joint  use  of  ditch. 

§  460.     Repair  of  ditches. 

§  461.     Damage  from  breaking  ditches,  etc. 

§  462.     Same — Floods. 

§  463.     Same. 

§§  ,464-472.     (Blank  numbers.) 

A.     ARTIFICIAL  WATER    CONDUITS,  ETC. 

(3d  ©d.) 

§  452.  General. — We  now  leave  the  questions  arising  out  of 
the  obtaining  of  water-rights,  and  take  it  as  granted  that  a  valid 
water-right  has  been  obtained  by  appropriation,  as  previously 
set  forth.  The  inquiry  now  is  as  to  the  limits  within  which  the 
water  can  be  then  used.  The  limitations  to  be  considered  are 
(1)  those  concerning  the  means  of  enjoyment;  (2)  concerning 
the  amount  of  water;  (3)  concerning  changes  in  the  mode  of 
enjoyment.  These  are  considered  in  successive  chapters. 

(3d  ed.) 

§  453.     Use  Without  Diversion. — Where  use  is  by  water-wheels, 

if  the  power-house  is  in  the  stream-bed  it.  was  held  to  be  an 
appropriation  in  one  case;1  while  in  another,2  putting  current- 
wheels  in  a  stream  was  in  effect  held  not  to  be  a  proper  method 

1  Idaho  etc.  Co.  v.   Stephenson,  16       207.     See  Colo.  Rev.  Stats.    1908,  see. 
Idaho,  418,  101  Pac.  821.  3180;    Gen.    Stats.,    sec.    1727;    Gen, 

2  Schodde   v.    Twin    Falls   etc.    Co.       Laws,  sec.  1377. 
(Idaho),   161   Fed.  43,  88   C.   C.   A. 


480   (3d  ed.)     Pt.  III.     THE  LAW  OF  PRIOR  APPROPRIATION.         §  454 

of  appropriation.  The  real  meaning  of  this  latter  decision,  how- 
ever, we  have  already  considered.3  A  few  other  cases  have  held 
use  without  diversion  to  constitute  appropriation.4 

A  dam  is  not  improper  per  se,  but  becomes  such  when  it  is 
the  means  of  taking  an  excess  of  water  over  the  quantity  to 
which  the  dam  owner  is  entitled.5 

(3d  ed.) 

§  454.    Use  in  Artificial  Water  Structures — Ditches,  Flumes, 

Pipes,  in  General. — Conveyance  in  ditches,  flumes,  pipes,  etc.,  is 
the  means  usually  adopted  in  putting  the  water  to  use.  In 
mining,  where  the  doctrine  of  appropriation  arose,  and  also  in 
irrigation,  the  water  is  ditched,  flumed,  or  piped  long  distances, 
sometimes  fifty  or  more  miles.  A  ditch  is  an  artificial  water- 
course.6 It  is  real  estate.7 

(3d  ed.) 

§  455.    The  Ditch,  etc.,  is  an  Easement. — That  a  ditch  is  an 

easement  has  been  frequently  declared.8  The  essence  of  the  right 
to  a  ditch  is  the  right  of  way  to  conduct  water  over  another's 
land,  and  confers  no  ownership  of  the  land  itself,  and  the  ditch 

3  Supra,  sec.  313.  8  Among    other   cases:    Gregory   v. 

<  Supra,  sec.  366,  settling  on  banks  Nelson,   41   Cal.  278,   12   Morr.   Min. 

of  stream.  Rep.  124;  Campbell  v.  West,  44  Cal. 

5  Arroyo    D.    etc.    Co.    v.    Baldwin  646,  1  Morr.  Min.  Rep.  218;  Quinlan 
(1909),   155   Cal.   280,   100   Pae.   874.  v.   Noble,   75    Cal.   250,   17    Pac.   69; 

Regarding  use  in  storage  reservoirs,  Allen  v.   San   Jose  etc.   Co.,   92   Cal. 

see  Index.  138,   28   Pac.   215,   15  L.  R.   A.   93;' 

6  Lower  Kings  River  etc.  Ditch  Co.  Bean   v.   Stoneman,    104    Cal.   49,    37 
v.   Kings   etc.    Co.,   60   Cal.   408.     So  Pac.  777,  38  Pac.  39;   Burris  v.  Peo- 
is  a  pipe.     Standart  v.  Round  Valley  pie's  Ditch  Co.,  104  Cal.  248,  37  Pac. 
W.  Co.,  77  Cal.  399,  19  Pac.  689.  922;  Mesnager  v.  Englehardt,  108  Cal. 

7  Clark  v.  Willett,  35  Cal.  534,  at  68,  41  Pac.  20;   Joseph  v.  Ager,  108 
549,  4  Morr.  Min.  Rep.  628 ;  Bashore  Cal.  517,  41  Pac.  422 ;  Dixon  v.  Seher- 
v.  Mooney,  4  Cal.  App.  276,  87  Pac.  meier,    110   Cal.   583,   42    Pac.    1091; 
556.     Water  conduits  are  real  estate.  Jacob  v.  Day,  111  Cal.  571,  44  Pac. 
Cal.  etc.  Co.  v.  County  of  Los  Angeles  243;  North  Fork  etc.  Co.  v.  Edwards, 
(1909),   10   Cal.   App.   185,   101   Pac.  121   Cal.   662,   54   Pac.    69;    Los   An- 
547.     An     easement     is     real     estate.  geles   v.    Pomeroy,    125    Cal.    420,   58 
Corea    v.   Higuera,    153    Cal.   451,    95  Pac.  69;    Mayberry  v.  Alhambra  etc. 
Pac.   884,   17   L.  R.  A.,  N.   S.,   1018.  Co.,    125    Cal.    444,    54   Pac.    530,   58 
A    ditch,    by    means    of    which    the  Pac.    68;    Oliver  v.   Agasse,   132   Cal. 
waters   of   a    natural   stream   are   di-  297,   64   Pac.   401 ;    Anaheim   W.    Co. 
verted,  is  not  itself  governed  by  the  v.  Ashcroft   (1908),  153  Cal.  152,  94 
law  of  natural  watercourses.    Simmons  Pac.    613 ;    Blake    v.    Boye,    38    Colo. 
v.  Winters,  21  Or.  35,  28  Am.  St.  Rep.  55,  88   Pae.  470,   8  L.  R.   A.,  N.   S., 
727,  27  Pac.  7.     See  definitions  of  a  418;    Smith  v.   Colorado   etc.   Co.,   34 
"ditch"    in  Nev.  Stats.  1909,  pp.  91,  Colo.  494,   82  Pac.  940,  3  L.  R.  A., 
247.  N.  S.,  1148. 


§455  Ch.  20.     MEANS  OF  USE.  (3ded.)481 

is  not  land.9  In  view  of  this  case  holding  that  a  ditch  is  not 
land,  it  would  seem  that  ejectment  would  not  lie  for  a  ditch. 
There  is,  however,  an  early  case  holding  that  ejectment  would 
lie  for  a  ditch,  and  it  has  been  frequently  cited  and  relied  on.10 

The  ownership  of  a  ditch  includes  no  ownership  of  the  soil,11 
nor  any  fee  in  the  land.12  Nor,  consequently,  does  it  include 
the  right  to  build  a  house  alongside  the  ditch ; 13  but  ownership 
of  a  ditch  merely  consists  in  right  of  way.14  "In  plaintiff's 
plea  of  former  judgment  the  allegation  is  that  it  had  been 
adjudicated  that  she  was  the  owner  of  a  'ditch  and  waterway' 
across  the  lands  of  defendant  for  the  purpose  of  conveying 
waters.  In  the  foregoing  discussion  we  have  treated  this  allega- 
tion as  meaning  no  more  than  that  she  owned  an  easement  or 
right  to  carry  waters  over  his  lands  through  a  ditch  or  water- 
way, and  such,  we  think,  is  the  proper  construction  of  the 
language  quoted. ' ' 15 

Changes  that  are  burdensome  to  the  servient  tenement  cannot 
be  made,  following  the  usual  law  of  easements.16  The  rights  and 
duties  of  repair  follow  the  law  of  easements.17  The  right  to 
maintain  a  ditch  arises' like  any  easement,  and  if  on  public  land, 
it  arises  by  government  grant  under  the  act  of  1866,  on  the 
same  principle  that  the  water-right  itself  is  a  grant;  and  the 

9  Mt.  Carmel  Fruit  Co.  v.  Webster,  14  Ibid.,  and  Bashore  v.  Mooney,  4 
140  Cal.  183,  73  Pac.  826;   the  facts       Gal.  App.  276,  87   Pac.  556. 

of  this'  case  are  stated  infra,  sec.  537.  15  Sloss,  J.,  in  Hoyt   v.   Hart,  149 

10  Reed    v.    Spicer,    27    Cal.    57,    4  Cal.  722,  87  Pac.  569.     The  civil  law 
Morr.  Min.  Eep.  330.     Eelied  on  in  In-  classed    the    right    to    conduct    wate-r 
tegral  Co.  v.  Altoona  Co.,  75  Fed.  383,  over  another's  land  as  the  same  as  a 
21  C.  C.  A-  409;  Ada  Co.  v.  Farmers'  right  of  way.     Institutes  of  Justinian, 
Co.,   5   Idaho,    799,   51   Pac.    990,   40  lib.  III.     "Rusticorum  praediorum  iura 
L.  R.  A.   485;   Pomeroy  on  Riparian  sunt    haec;     iter,     actus    via,    aquae 

Rights,  sec.  57;  Kinney  on  Irrigation,       ductus Aquae    ductus    est    ius 

sec.    224.     In   Dondero   v.    O'Hara,   3  aquae  decendae  per  fundum  alienum. 

Cal.  App.  633,  86  Pac.  985,  ejectment  ....  Item     praediorum     urbanorum 

for  a   ditch  was  allowed.     The  point  servitutes    sunt    hae:   .  .  .  .  ut    stilli- 

was  not  raised.     But   compare   Swift  cidium    vel    flumen    recipiat    quis    in 

v.  Goodrich,  70  Cal.  103,  11  Pac.  561.  aedes  suos,  vel  in  aream,  vel  non  re- 

11  Lyman  v.  Arnold,  5  Mason,  195,  cipiat." 

Fed.  Cas.  No.  8626.  16  Infra,  sec.  501  et  seq. 

12  Whitmore  v.  Pleasant  Valley  Co.,  So  long  as  a  tract  remains  in  one 
27  Utah,   284,   75   Pac.   748 ;   Nichols  ownership,  there  can  be  no  dominant 
v.  New  England  etc.   Co.,   100   Mich.  and  servient  tenements  as  between  dif- 
230,  59  N.  W.  155 ;  Hayward  v.  Mason  f erent  portions  of  the  tract,  and  the 
(1909),  54  Wash.  649,  104  Pac.  139;  owner  may  rearrange  the  quality   of 
Hayward  v.  Mason  (Wash.  1909),  104  any  possible  servitude.     Oliver  v.  Bur- 
Pac.  141.  nett,  10  Cal.  App.  403,  102  Pae.  223. 

13  Whitmore  v.  Pleasant  Valley  Co.,  17  Infra,  see.  460  et  seq. 
27  Utah,  284,  75  Pac.  748. 

Water  Rights — 31 


i82  (Sded.)     Pt.  III.     THE  LAW  OF  PRIOR  APPEOPBIATION.         §  456 

burden  of  the  ditch  attaches  to  the  land  if  the  land  later  passes 
into  private  title.18  But  a  new  ditch  cannot  be  built  over  pri- 
vate land,  nor  an  old  one  changed,  without  the  consent  of  the 
land  owner,  unless  by  prescription  or  condemnation  under  the 
power  of  eminent  domain.19  Excepting  government  ditches,  a 
right  of  way  for  which  has  been  reserved  from  all  patents 
granted  since  1890.20 

Formerly  Colorado 'decisions  allowed  the  building  of  private 
irrigation  ditches  over  another's  land  without  his  consent;  but 
now  in  Colorado  as  elsewhere  this  is  not  permitted.  After  title 
to  land  has  passed  from  the  government,  the  land  can  be  bur- 
dened with  a  right  of  way  for  water  only  by  consent  of,  the 
owner,  or  by  condemnation  proceedings.  The  Colorado  rule  in 
this  respect  has  already  been  discussed  at  length.21  The  early 
Colorado  partiality  to  irrigation  ditches  is  similar  to  that  urged 
in  California  in  the  early  days  for  mining  ditches,  which  finally 
the  court  rejected  in  California  also.22 

The  building  of  a  ditch  over  private  land  by  condemning  an 
easement  of  right  of  way  is  discussed  under  the  topic  of  eminent 
domain.23  It  has  been  held  that  a  water-right  must  be  obtained 
before  a  right  of  way  for  a  ditch  can  be  obtained.24 

Some  cases  speak  of  "servitude  upon  a  ditch"  or  "easement 
in  a  ditch"  to  express  the  right  of  consumers  from  irrigation 
companies,  though  a  servitude  upon  a  servitude  or  an  easement 
in  an  easement  seems  an  anomalous  form  of  expression.25 

(3d  ed.) 

§  456.  Ditch  and  Water-right  Distinguished. — The  water- 
right  itself,  as  a  flow  and  use,  is  not  an  easement.  It  is  a  thing 
in  itself,  not  a  servitude  upon  some  other  thing ;  whereas  the  right 

18  U.    S.    Rev.    Stats.,    sees.    2339,          21  Supra,  sec.  223  et  seq. 
2340;  Gregory  v.  Nelson,  41  Cal.  278,  22  Supra,  sec.  85. 

12    Morr.    Min.    Rep!    124;    Smith    v.  9,  Tnf^       „    Kr>A 

,,      .  .        ,-,«  /i  i    TOO    xo  -n        AKO  ^  Infra,  sec.  b04. 
Hawkins,  110  Cal.  122,  42  Pac.  453; 

Jacob  v.  Day,  111  Cal.  571,  44  Pac.  24  Nippel   v.    Forker,    26    Colo.   74, 

243;    Le   Quim   v.   Chambers    (1908),  56  Pac-  5775   Castle  Eock  Co-  v-  Ju" 

15  Idaho,  405,  21  L.  R.  A.,  N.  S.,  76,  risch,    67    Neb.    377,   93   N.    W.    690. 

98  Pac.  415  (a  pipe-line).     Supra,  sec.  Contra,  however,  State  ex  rel.  Kettle 

257.  Falls   etc.    Co.   v.   Superior   Court,   46 

19  Supra,  sec.  221  et  seq.  Wash.   500,  90   Pac.   653.     See  infra, 

20  Green  v.  Wilhite,  14  Idaho,  238,  sec.     615.     See    O'Reilley    v.    Noxon 
93  Pac.  971;  Same  v.  Same,  156  Fed.  (Colo.),  113  Pac.  486. 

755.  25  See  infra,  sees.  1324,  1338. 


§  450  Ch.  20.     MEANS  OF  USE.  (3d  ed.)  483 

to  a  ditch  or  other  artificial  watercourse  is  an  easement.1  "The 
right  to  the  use  of  water  in  a  natural  stream  is  in  no  sense  an 
easement,  but  its  use  by  diversion,  in  an  artificial  watercourse, 
is  strictly  an  easement. ' ' 2  Consequently,  a  grant  of  a  right  of 
way  for  a  ditch  does  not  necessarily  include  a  conveyance  of  a 
right  to"  take  water  from  the  stream  from  which  the  ditch  is 
built.3  An  injury  to  a  water-right  cannot  be  proved  under  a 
count  for  an  injury  to  a  ditch,  or  vice  versa.4  A  canal  may  well 
be  granted,  reserving  the  water-right.5  They  may  be  condemned 
separately  on  eminent  domain  proceedings.6  An  abandonment 
of  a  ditch  does  not  necessarily  include  an  abandonment  of  the 
owner's  water-right.7  A  decree  as  to  the  one  does  not  neces- 
sarily govern  as  to  the  other.8  Revocation  of  a  license  to  build 
a  ditch  does  not  necessarily  affect  the  right  to  the  water  car- 
ried by  the  ditch.9 

"Ownership  of  a  ditch  and  the  water-right  for  waters  to  flow 
through  the  ditch  may,  and  often  do,  exist  in  different  parties. 
The  existence  of  the  one  right  does  not  necessarily  imply  the 
existence  of  the  other  right  in  the  same  party."10  It  is  said  in 
another  case: /'But  the  water-right,  when  acquired,  although 
intimately  related  to  and  connected  with  the  site  for  a  dam 
and  canal,  and  dam  and  canal  commenced,  etc.,  is  a  different 
thing,  even  though  each  may  be  necessary  to  make  the  other 
available  or  useful.  They  are  capable  of  several  and  distinct 
injuries,  giving  rise  to  separate  and  distinct  causes  of  action, 
for  which  there  are  separate  and  distinct  remedies.  The  dam 
and  canal  may  be  trespassed  upon,  broken  down,  destroyed  or 

1  See  Zimmler  v.  San  Luis  Co.,  57       10  Wash.  157,  38  Pac.  875;  Ada  etc. 
Cal.  221 ;  McLear  v.  Hapgood,  85  Gal.       Co.  v.  Farmers'  etc.  Co.,  5  Idaho,  793, 
555,   24   Pac.    788;    Natoma    etc.   Co.       51  Pac.  990,  40  L.  E.  A.  485. 

v.  Hancock,  101  Cal.  42,  31  Pac.  112,  6  Schneider  v.   Schneider,   36   Colo. 

35  Pac.  334   (semble  contra);  Dixon  518,  86  Pac.   348. 

v.  Schermeier,   110  Cal.  582,  42  Pac.  7  Nichols  v.  Mclntosh,  19  Colo.  22, 

1091;    Jacob   v.  T)ay,    111    Cal.    571,  34  Pac.  278. 

44  Pac.  243;   Mayberry  v.  Alhambra  8  Parke  v.  Boulware,  7  Idaho,  490, 

etc.   Co.,   125   Cal.   444,   54  Pac.   530,  63  Pac.  1045. 

58  Pac.  68.  9  Ison  v.  Sturgill    (Or.   1909),   109 

2  Yale     on     Mining     Claims     and  Pac.   579. 

Water  Eights,  p.  204.  10  Swank  v.  Sweetwater  etc.  Co.,  15 

»  Zimmler  v.  San  Luis  Co.,  57  Cal.  Idaho,  353,  98   Pac.   297,  citing  Ada 

221.  County  Farmers'  Irr.  Co.  v.  Farmers' 

4  Nevada  etc.  Co.  v.  Kidd,  37  Cal.  Canal  Co.,  5  Idaho,  793,  51  Pac.  990, 
282.  40  L.  E'.  A.  485;    Stocker  v.  Kirtley, 

5  Eogers  v.  Eiverside  etc.  Co.,  132  6  Idaho,  795,  59  Pac.  891;   Parke  v. 
Cal.    9,    64   Pac.   95;    Wold   v.   May,  Boulware,  7  Idaho,  490,  63  Pac.  1045. 


484  (3d  ed.)     Pt.  III.     THE  LAW  OF  PKIOE  APPROPRIATION.         §  457 

taken  into  possession  under  a  claim  of  right,  without  taking 
away  the  water,  or  preventing  its  use  in  any  other  mode  or 
place,  or  without  questioning  plaintiff's  right  to  it,  and  plaintiff 
may  have  its  action  for  the  trespass,  or  to  recover  the  possession 
of  the  land  constituting  the  dam  and  canal,  or  their  site ;  and 
the  water  may  also  be  diverted  and  taken  away  without  in  any 
way  disturbing  or  interfering  with  the  dam  and  canal. ' ' n 

The  water-right,  however,  though  entirely  a  distinct  thing  from 
the  ditch,  may  be  an  appurtenance  to  a  given  ditch  or  the  ditch 
to  the  water-right,  if  used  specifically  in  connection  therewith. 
In  such  a  case,  the  water-right  may  pass  as  an  appurtenance  in 
the  conveyance  of  the  ditch.12  In  one  case  13  the  ditch  was  built 
in  two  parts,  which  were  separately  sold  on  foreclosure  of  a 
mechanic's  lien.  It  was  held  that  the  water-right  passed  as 
an  appurtenance  to  the  upper  part,  and  the  owner  of  the  lower 
part  has  no  water-right.14  Where,  however,  the  ditch  is  not 
made  up  of  distinct  parts  the  water-right  is  appurtenant  to 
every  part  of  the  ditch,  however  long.15  In  this  case  the  rule 
is  applied  to  allow  suit  in  one  county  or  State  through  which 
the  ditch  runs,  for  diversion  of  the  water  in  another  county  or 
State,  in  which  the  water  entered  the  ditch.  There  would  seem 
to  be  a  conflict  between  this  rule  that  a  water-right  is  appur- 
tenant to  the  ditch,  and  the  rule  16  that  an  injury  to  the  water- 
right  (diversion)  cannot  be  proved  under  a  count  for  injury  to 
the  ditch. 

In  one  case  17  the  court  says  the  water-right  is  the  principal, 
and  if  either  is  appurtenant  to  the  other,  the  ditch  is  appurtenant 
to  the  water-right. 

(3d  ed.) 

§  457.    Water  in  Artificial  Waterworks  or  Structures. — This  is 

a  matter  fully  considered  elsewhere.18 

n  Nevada  C.  &  S.  C.  Co.  v.  Kidd,  15  Lower  Kings   River   etc.   Co.  v. 

37  Cal.  282,  309.  Kings  etc.  Co.,  60  Cal.  408;  Willey*  v. 

12  Lower  etc.  Co.  v.  Kings  etc.  Co.,  Decker,    11    Wyo.    496,    100    Am.    St. 
60  Cal.  408;  Williams  v.  Harter,  121  Rep.  939,  73  Pac.  210. 

Cal.  47,  53  Pae.  405.     See  infra,  sec.  i«  Nevada  etc.  Co.  v.  Kidd,  supra. 

550  et  seq.  17  Jacobs  v.  Lorenz,  98  Cal.  332,  33 

13  Reynolds  v.  Hosmer,  51  Cal.  205,  Pac.  119.     See,  also,  Cascade  etc.  Co. 
5  Morr.  Min.  Rep.  6.  v.  Railsback   (Wash.),  109  Pac.  1062. 

14  Accord.  6  Wall.  561.      Also  Jarvis  See,  also,  Nippel  v.  Porker,  26  Colo, 
v.  State  Bank,  22  Colo.  309,  55  Am.  74,  56  Pac.  577. 

St.  Rep.  129,  45  Pac.  505,  of  a  ditch          18  Supra,  sec.  30  et  seq. 
made  up  of  distinct  parts. 


§  458  Ch.  20.     MEANS  OF  USE.  (3d  ed.)  485 

B.     USE  OF  ABTIFICIAL  WATEE  CONDUITS,  ETC. 

(3d  ed.) 

§  458.  Contracts  Concerning  Ditches. — There  is  no  limitation 
upon  the  right  to  deal  with  or  dispose  of  this  kind  of  property, 
and  the  usual  law  of  contracts  applies.188  A  covenant  to  allow  a 
neighbor  to  take  the  water  from  a  stream  and  build  two  ditches 
across  one's  land  runs  with  the  land.19  A  license  for  a  pipe-line 
does  not  cover  a  defective  pipe-line.20  A  sale  of  a  ditch  may 
carry  with  it  a  water-right  as  an  appurtenance ; 21  but  a  grant 
may  be  made  of  a  canal  reserving  the  water-right ; 22  and  a 
water-right  will  not  always  pass  as  an  appurtenance  with  the 
grant  of  a  ditch-right  if  such  was  not  the  intent.23  They  may 
be  sold  separately.24  Ditches  and  water-rights  are  subject  to 
mechanics'  liens,25  or  execution,1  or  mortgage.2  In  equity,  parol 
licenses  and  contracts  are  sometimes  given  an  effect  which  they 
would  not  have  at  law,  as  to  which  more  hereafter ;  but  in  gen- 
eral, conveyances  of  ditches  or  agreements  regarding  them  are 
within  the  statute  of  frauds.3  Recording  of  a  grant  to  build 
a  ditch  is  not  necessary  inter  paries  or  purchasers  with  notice.4 

A  grant  of  right  of  way  for  a  pipe-line  without  specifying 
dimensions  means  a  reasonable  width,5  and  becomes  fixed  when 
a  definite  one  is  thereunder  located  and  used.6  An  express 
grant  of  a  right  of  way  to  lay  pipes  without  specifying  number 
and  size  becomes  fixed  by  laying  a  ten-inch  pipe  with  the 
acquiescence  of  both  parties,  and  more  or  larger  pipes  cannot 
be  laid  thereafter  in  the  absence  of  special  matter  in  the  instru- 

I8a  Infra,  sec.  536  et  seq.  1  Gleason    v.    Hill,    65    Cal.'  17,    2 

19  Weill   v.   Baldwin,    64   Cal.   476,       Pac.  413. 

2.Pac.  249.  2  Mitchell  v.  Canal  Co.,  75  Cal.  464, 

20  Graham  v.   Redlands  etc.   Co.,  3       17  Pac.  246. 

Cal.  App.  732,  86  Pac.  989.  3  Prentice  v.  McKay,  38  Mont.  114, 

21  Infra,  sees.  508,  550.  98  Pac.   1081;    Oliver  v.   Burnett,   10 

22  Rogers  v.  Riverside  etc.  Co.,  132  Cal.    App.    403,    102    Pac.    223.     See 
Cal.  9,  64  Pac.  95.  infra,  sec.  555  et  seq. 

23  Zimmler  v.  San  Luis  etc.  Co.,  57  4  Little  v.  Gibb,  57  Wash.  92,  106 
Cal.  221.     See  infra,  sec.  550  et  seq.  Pac.  491.     See  infra,  sec.  542. 

24  Miller   v.    Vaughan,    8    Or.    333,  5  Everett    etc.    Co.    v.    Powers,    37 
and  supra,  sec.  456.  Wash.   143,   79   Pac.   617;    Ballard   v. 

25  Reynolds  v.  Hosmer,  51  Cal.  205,  Titus   (1910),  157  Cal.  673,  110  Pac. 
5  Morr.  Min.  Rep.  6;  Bear  Lake  etc.  118. 

Co.  v.  Garland,  164  U.  S.  1,  17  Sup.  6  Winslow  v.  Vallejo,  148  Cal.  725, 

Ct.  Rep.   7,  41  L.  Ed.  327;   Creer  v.  113  Am.   St.  Rep.   349,   84  Pac.   191, 

Cache   Valley    Co.,   4   Idaho,   280,   95  5  L.  R.  A.,  N.  S.,   851,  7  Ann.  Gas. 

Am.  St.  Rep.  63,  38  Pac.  653;  Jarvia  851;  Kern  etc.  Co.  v.  Bakersfield,  151 

v.  State  Bank,  22  Colo.  309,  55  Am.  Cal.  403,  90  Pac.  1052. 
St.  Rep.  129,  45  Pac.  505. 


486  (3d  ed.)     Pt.  III.     THE  LAW  OF  PRIOR  APPROPRIATION.         §  458 

ment  of  grant  providing  for  such  change.7  Under  a  license  to 
enter  on  plaintiff's  land  to  construct  a  pipe-line  of  a  specified 
capacity  of  good  substantial  material  and  workmanship  for  the 
conveyance  of  water  to  the  licensees'  premises,  the  latter  were 
not  entitled  to  enter  on  the  land  to  construct  a  pipe-line  which 
was  substantially  defective  in  character  and  likely  to  be  pro- 
ductive of  unnecessary  damage  to  plaintiff.8  Where  one  has  a 
grant  of  right  in  general  terms  to  build  a  ditch  over  another's  land, 
he  must  build  it  subject  to  the  restriction  to  create  the  least 
practical  interference  with  the  servient  freehold.9  It  has  been  held 
that  a  grant  of  a  right  of  way  for  a  pipe-line  includes  by  implica- 
tion a  right  to  build  a  telephone  line  along  it  to  be  used  in  maintain- 
ing the  canal.9* 

A  reservation  of  a  "right  of  way"  does  not  include  the  right 
to  dig  trenches  and  lay  trenches  for  the  conduct  of  water.10 
In  one  case  an  association  reserved  to  itself,  its  members  and 
alienees  ''a  reasonable  right  of  way  in  and  across"  the  lands 
which  it  granted.  It  was  held  that  "the  phrase  'right  of  way' 
as  thus  used  has  a  well-defined  meaning.  It  contemplates  a 
right  of  ingress  and  egress  to  and  from  the  grantee's  lands.  It 
does  not  contemplate  the  right  to  dig  trenches  and  lay  pipe- 
lines for  the  conduct  of  water."11 

The  right  to  erect  a  dam  and  lay  a  four  and  one-half  inch  pipe 
therefrom  does  not  convey  a  right  to  change  such  dam,  at  will, 
nor  to  lay  an  eight-inch  pipe  across  any  portion  of  the  land 
which  might  be  desired.  Having  made  its  first  location  under 
its  grant,  a  water  company  was  bound  thereby,  and  had  no  right 
to  go  where  it  would,  and  lay  any  pipe  it  saw  fit  across  any 
desired  part  of  the  land.12 

Water  in  a  pipe  is  a  commodity,  and  if  conveyed  in  a  pipe, 
the  pipe  may  belong  to  one  person  and  the  water  to  another.13 

1  Winslow  v.   City  of  Vallejo,   148  10  San  Rafael  Co.  v.  Ralph  Rogers 

Cal.   723,   113   Am.   St.   Rep.   349,   84  Co.,  154  Cal.  76,  96  Pac.  1092. 

Pac.   191,  5  L    R.  AN.   S.,   851,   7  n  g            fw,        CQ   y   Ral  fa  ^ 

ton    Gas.  851  (Sloss   J.)  c      (190g)     154  Cl    1Q    ^  p  * 

8  Graham     v.      Redlands      Heights  ,„£.?        ^         " 
Water  Co.  et  al.,  3  Cal.  App.  732,  86 

Pac.  989.  12  Rhoades   v.    Barnes     (1909),    54 

9  Tarpey  v.  Lynch  (1909),  155  Cal.       Wash.  145,  102  Pac.  884. 

4°£  JS  Pa*'  1«'   4i  13  New  Jersey  Co.  v.  Town  of  Har- 

»a  City     of    Portland    v.     Metzger         .         72  XT    T   L   194   62  Atl   767 
(Or.),  114  Pac.  106.  °  >  i&  *'  J'  ^        '          U"  '07< 


§459  Ch.20.     MEANS  OF  USE.  C3ded.)487 

Further  reference  is  made  to  the  general  chapter  hereafter  de- 
voted to  contracts,  conveyances  and  appurtenances. 

(3d  e«L) 

§  459.     Joint  Use  of  Ditch. — Ownership  of  an  easement  over 

another's  land  is  not  necessarily  inconsistent  with  a  like  use  by 
the  landowner,  of  the  servient  tenement,  so  long  as  such  use  is 
subordinate  to  the  easement,  and  does  not  restrict  or  limit  its 
exercise.14  In  the  case  just  cited  Mr.  Justice  Sloss  said:  "There 
is  no  inconsistency  between  the  portion  of  the  decree  declaring 
that  plaintiff  has  an  easement  in  these  ditches,  and  that  portion 
which  grants  to  defendant  the  right  to  use  the  ditches  jointly 
with  plaintiff  for  the  purpose  of  carrying  his  waters.  The  ease- 
ment is  a  right  to  use  the  lands  of  the  defendant  for  conduct- 
ing her  waters  to  her  lands.  It  can  coexist  with  a  right  in  the 
defendant  or  anyone  else  to  use  the  same  waterways,  so  long 
as  such  use  does  not  restrict  or  interfere  with  the  right  owned 
by  the  plaintiff.  It  would  not  be  claimed  that  merely  because 
A  has  a  right  of  way  over  B's  land,  B  cannot,  under  any  cir- 
cumstances, use  the  portion  of  his  land  affected  by  the  easement 
in  a  manner  which  does  not  infringe  upon  the  exercise  of  such 
easement.  It  is  well  settled,  as  a  general  proposition,  that  the 
owner  of  the  servient  estate  may  use  his  property  in  any  man- 
ner and  for  any  purpose  consistent  with  the  enjoyment  of  the 
easement."15  The  same  is  true  when  the  right  to  the  ditch 
has  been  obtained  by  prescription.16  One  might  acquire  a  pre- 
scriptive right  to  use  an  irrigation  ditch  to  convey  a  limited 
quantity  of  water  to  his  land,  while  another  retained  the  right 
also  to  use  the  ditch  for  his  own  purposes  to  the  extent  of  its 
remaining  capacity.17 

Regarding  joint  ownership  of  ditches  see,  further,  a  previous 
chapter.18 

14  Hoyt  v.  Hart,  149  Cal.  722,  87       142  Cal.  396,  76  Pac.  60,  61) ;  Bashore 
Pac.  569.  .        v.  Mooney,  4  Cal.  App.  276,  87  Pac. 

15  Accord,  Colegrove   Water   Co.   v.       55,3. 

City  of  Hollywood,   151  Cal.  425,  90  „  Bashore        Moonev    4  Cal    ADD 

Pac.   1053,   13  L.  R.   A.,  N.   8.,  904;  "  SfvSfinui  ?> 

Hayward  v.   Mason   (1909),  5  Wash.         ">•  * 

649,   104  Pac.   139.  is  Supra,  sec.  320,  tenants  in  corn- 
is  Smith  v.  Hampshire,  4  Cal.  App.  mon. 
8,  87  Pac.  224  (citing  Abbott  v.  Pond, 


488  (3d  ed.)     Pt.  III.     THE  LAW  OF  PRIOR  APPROPRIATION.         §  460 

(3d  ed.) 

§  460.     Repair  of  Ditches. — As  in  the  case  of  any  easement, 

the  ditch-owner,  as  the  dominant,  has  the  duty  of  keeping  the 
ditch  in  repair,  and  not  the  landowner.19  Correspondingly  he 
has  a  right  of  entry  upon  the  servient  estate  to  make  the 
repairs  20  and  to  clean  out  the  ditch,  and  if  the  landowner  inter- 
feres, injunction  lies.21  The  landowner,  on  his  part,  cannot 
remove  the  lateral  or  subjacent  support  to  which  the  ditch  is 
entitled.22  Otherwise  he  is  free  to  use  his  land  in  the  ordinary 
way,  such  as  for  pasturing  sheep,  though  they  trample  the  ditch. 
It  is  the  ditch-owner's  duty  to  fence  or  otherwise  keep  the  ditch 
in  repair  against  damage  from  the  ordinary  use  of  the  land  by 
the  landowner.23  And  per  contra  if  the  cattle  drown  in  the  ditch, 
the  ditch-owner  is  not  liable  to  the  landowner.24  The  owner  of 
the  servient  estate  may  erect  fences  along  the  sides  of  a  ditch 
or  artificial  watercourse.  Unless  it  is  expressly  stipulated  that 
the  way  shall  be  an  open  one,  or  it  appears  from  the  terms  of 
the  grant  or  the  circumstances  of  the  case  that  such  was  the 
intention  of  the  parties,  the  owner  of  the  servient  estate  may 
also  erect  gates  across  the  way,  provided  they  are  so  located 
and  constructed  as  not  unreasonably  to  interfere  with  the  use  of 
the  ditch.25  Where  ditch  crosses  ditch,  the  later  claimant 
must  adjust  the  crossings  so  as  not  to  interfere  with  the  prior 

i»  Fraler  v.  Sears  etc.  Co.,  12  Cal.  Watson  D.  Co.  (1909),  16  Idaho,  484, 

556,  73  Am.  Dec.  562,  12  Morr.  Min.  133  Am.  St.  Rep.  125,  101  Pac.  1059. 

Rep.  98;   Richardson  v.  Kier,  34  Cal.  21  Stufflebeem    v.     Adelsbach,     135 

63,   91   Am.   Dec.   681,   4   Morr.   Min.  Cal.  221,  67  Pac.  140. 

Rep.  612 ;  Richardson  v.  Kier,  37  Cal.  ^  Gre  or     v    Neison    41  Cal.   278, 

263;   Durfee  v.  Garvey,   78  Cal.  546,  12   Morr6  Min    R         m     Lorenz   y> 

21  Pac.  302;   Bean  v.  Stoneman,  104  Waldron    96  Cal   943    31  Pac.  54. 

Cal.    49,    37    Pac.    777,    38    Pac 5     39;  23  Cattle   trampling  -ditch.     Durfee 

Niday   v.    Barker    (1909),    16    Idaho,  y    G             7g  Cal    5|6    21  Pac    3Q2 

73,  101  Pac.  254.     See  15  L.  R.  A.,  Keller  v^'Fink    (Cal);  37  Pac    4n 

N.  S.,  992,  note.  Cattle  pointing  ditch.     City  of  Belle- 

20  Pico   v.   Colimas,   32    Cal.    578;  vue  v.  Daly,  14  Idaho,  545,  125  Am. 

Ware  v.  Walker,  70  Cal.  591,  12  Pac.  St.  Rep.  179,  94  Pac.  1037,  15  L.  R. 

475;    City    of    Bellevue    v.   Daly,   14  A.,   N.   S.,    992,    14    Ann.    Cas.    1136. 

Idaho,  545,  125  Am.  St.  Rep.  179,  94  Contra,  however,  Bileu  v.  Paisley,  18 

Pac.    1037    (dictum).     See    15    L.    R.  Or.  47,  21  Pac.  934,  4  L.  R.  A.  840. 

A.,  N.   S.,   992,   note,   14    Ann.    Cas.  24  Messinger   v.   Gordon,    15    Colo. 

1136.     This   right,   however,   must   be  App.  429,  62  Pac.  959. 

exercised  with  due  care  and  diligence  25  Utah   etc.   Co.   v.    Stevenson,   34 

and    not    arbitrarily.     Hutchinson    v.  Utah,  184,  97  Pac.  27. 


§461 


Ch.  20.     MEANS  OF  USE. 


(3ded.)  489 


ditch.1  Repairs  may  be  made  on  a  ditch  slightly  changing  its 
grade.3 

Regarding  maintenance  and  repair  of  distributing  systems  as 
between  company  and  consumers,  reference  is  made  to  a  later 
chapter.3 

(3d  ed.) 

§  461.    Damage  from  Breaking  Ditches,  etc. — The  use  by  means 

of  ditches,  flumes  and  similar  apparatus  is,  of  course,  the  most 
usual,  and  using  the  water  in  this  way  does  not,  by  any  means, 
make  the  appropriator  an  insurer  of  others  against  damage  from 
breaking,  overflow,  seepage,  or  other  escape  of  the  water.  The 
famous  English  case  of  Rylands  y.  Fletcher4  declared  that  a 
man  builds  a  reservoir,  or  other  works  to  hold  water,  at  his  peril.5 
But  such  is  not  the  law  in  the  West.  The  ditch-owner  is.  not 
liable  merely  because  the  break  or  escape  occurred,  but  only  if 
it  occurred  through  his  negligence.  Negligence  must  be  shown.0 


1  Jennison  v.  Kirk,   98  U.   S.   453, 
25  L.  Ed.  240,  4  Morr.  Min.  Rep.  504. 

2  Burris  v.  People's  Ditch  Co.,  104 
Cal.  248,  37  Pac.  922. 

Regarding  contribution  between  ten- 
ants in  common  for  repair  of  ditches, 
see  supra,  sec.  320. 

Regarding  duty  to  bridge,  see  Mac- 
Cam'melly  v.  Pioneer  Irr.  Diet.,  17 
Idaho,  415,  105  Pac.  1076;  Hague  v. 
Juab  etc.  Co.  (Utah,  1910),  107  Pac. 
249;  Farmers'  Highline  Canal  Co.  v. 
Westlake,  23  Colo.  29,  46  Pac.  134; 
Nebraska  Stats.  1895,  p.  23,  sec.  52; 
Stats.  1903,  c.  120,  p.  613;  Cobbey's 
Ann.  Stats.,  sec.  6806. 

3  Infra,  sec.  1284. 

4  L.  R.  1  Ex.  265,  L.  R.  3  H.  L. 
330. 

6  "In  Rylands  v.  Fletcher,  L.  R. 
1  Ex.  267,  L.  R.  3  H.  L.  330,  it  was 
declared  that  no  amount  of  diligence 
is  a  legal  excuse,  if  such  water  es- 
cdpes  and  damages  another.  The  cor- 
rectness of  this  doctrine  has  been 
much  discussed  by  law-writers  and 
courts.  It  has  been  approved  in 
Massachusetts  (see  Gorham  v.  Gross, 
125  Mass.  232,  28  Am.  Rep.  234);  in 
Minnesota  (see  Cahill  v.  Eastman,  18 
Minn.  324  (Gil.  292),  10  Am.  Rep. 


184).  It  has  been  disapproved  in 
other  States.  See  Losee  v.  Buchanan, 
51  N.  Y.  476,  10  Am.  Rep.  623;  Pa. 
Coal  Co.  v.  Sanderson,  113  Pa.  126, 
57  Am.  Rep.  445,  6  Atl.  453;  Mar- 
shall v.  Welwood,  38  N.  J.  L.  339,  20 
Am.  Dec.  394."  Scott  v.  Longwell, 
139  Mich.  12,  102  N.  W.  230,  5  Ann. 
Gas.  679.  See,  also,  Moore  v.  Berlin 
Co.,  74  N.  H.  305,.  124  Am.  St.  Rep. 
968,  67  Atl.  578,  11  L.  R.  A.,  N.  S., 
284,  13  Ann.  Gas.  217.  See,  also,  15 
L.  R.  A.,  N.  S.,  541,  note. 

6  California. — Tenney  v.  Miners' 
Ditch  Co.,  7  Cal.  335,  11  Morr.  Min. 
Rep.  31;  Wolf  v.  St.  Louis  Co.,  10 
Cal.  541,  10  Morr.  Min.  Rep.  636; 
Todd  v.  Cochell,  17  Cal.  98,  10  Morr. 
Min.  Rep.  655;  Richardson  v.  Kier, 

34  Cal.  63,  91  Am.  Dec.  681 ;  4  Morr. 
Min.  Rep.  612;  Hoffman  v.  Tuolumne 
etc.  Co.,  10  Cal.  413;   Everett  v.  Hy- 
draulic Co.,  23  Cal.  225,  4  Morr.  Min. 
Rep.  589;  Campbell  v.  Bear  River  Co., 

35  Cal.  679,  10  Morr.  Min.  Rep.  656; 
Weidekind     v.      Tuolumne     etc.     Co. 
(Cal.),  12  Pac.  387;   Bacon  v.  Kear- 
ney etc.  Syndicate,   1  Cal.   App.  275, 
82  Pac.  82   (overflow  of  ditch)  ;  Gib- 
son v.  Puchta,  33  Cal.  310,  12  Morr. 
Min.  Rep.  227;  Paolini  v.  Fresno  Co., 


490  (3d  ed.)     Pt.  III.     THE  LAW  OF  PRIOE  APPROPRIATION.         §  461 


It  is  not  even  a  case  of  res  ipsa  loquitur  and  negligence  is  not 
presumed  from  the  mere  fact  that  a  break  or  escape  occurred,7 
unless  such  presumption  is  specially  enacted  by  statute.8  The 
ordinary  rule  of  negligence,  that  there  must  be  a  failure  to  use 
the  care  which  an  ordinary  prudent  man  would  have  taken  under 


9  Cal.  App.  1,  97  Pac.  1130.  But  see 
Parker  v.  Larsen,  86  Cal.  236,  21 
Am.  St.  Rep.  30,  24  Pae.  989  (leak- 
age). 

Colorado. — City  of  Denver  v.  Mul- 
len, 7  Colo.  345,  3  Pac.  693;  Platte 
Co.  v.  Anderson,  8  Colo.  131,  6  Pac. 
515;  Walley  v.  Platte  Co.,  15  Colo. 
579,  26  Pae.  129;  Catlin  etc.  Co.  v. 
Best,  2  Colo.  App.  481,  31  Pac.  391 
(holding  negligence  shown).  But  "see 
the  statutory  presumption,  infra, 

Idaho. — Arave  v.  Idaho  etc.  Co.,  5 
Idah'o,  68,  46  Pac.  1024. 

Montana. — King  v.  Miles,  16  Mont. 
463,  50  Am.  St.  Rep.  506,  41  Pac.  431; 
Fleming  v.  Lockwood,  36  Mont.  384, 
92  Pac.  962,  14  L.  R.  A.,  N.  S.,  628, 
13  Ann.  Cas.  263;  Mulrone  v.  Mar- 
shall, 35  Mont.  238,  88  Pac.  797,  cit- 
ing Montana  cases. 

Nebraska. — Kearney  etc.  Co.  v. 
Akeyson,  45  Neb.  635,  63  N.  W.  921; 
Suitor  v.  Chicago  etc.  Ry.  (1909),  84 
Neb.  256,  120  N.  W.  113. 

Nevada. — Shields  v.  Orr  etc.  Co.,  23 
Nev.  349,  47  Pac.  194. 

Texas. — City  of  Paris  v.  Tucker 
(Ter.  Civ.  App.),  93  S.  W.  233  (a 
pipe-line) . 

Wyoming. — Howell  v.  Big  Horn 
Basin  etc.  Co.,  14  Wyo.  14,  1  L.  R. 
A.,  N.  S.,  596,  81  Pac.  785,  citing 
cases. 

7  Tenney  v.  Miners'  etc.  Co.,  7  Cal. 
335,  11  Morr.  Min.  Rep.  31. 

8  California. — The  great  weight  of 
authority  in  California  is  against  any 
such     presumption,    as    above     cited. 
At  the  same  time  it  should  be  noted 
that  the  case  of  Parker  v.  Larsen,  86 
Cal.  236,  21  Am.  St.  Rep.  30,  24  Pac. 
989,  holds  the  ditch-owner  to  the  same 
liability    as    in     Fletcher    v.    Rylands 
(not  citing  it)  ;  and  there  is  a  statu- 
tory  enactment    approaching    the   in- 
surer   rule   in   some    cases.     Political 
Code,  section  3486.  and  section  3487. 

Colorado. — A  statutory  liability  is 
enacted  in  M.  A.  S.  2272;  Rev.  Stats. 


1908,  sees.  3204,  3213,  3233,  3238; 
Gen.  Stats.,  sec.  1726  et  seq.;  Laws 
1872,  p.  144,  sec.  1;  Laws  1876,  p. 
78,  sec.  2;  Laws  1879,  p.  107,  sec.  40; 
Laws  1899,  p.  316,  sec.  9.  It  seems  to 
approach  close  to  the  rule  of  Rylands 
v.  Fletcher  as  concerns  reservoirs,  for 
the  court  holds  the  reservoir  owner  to 
a  strong  liability  under  it,  on  the 
ground  that  the  water  is  likely  to  es- 
cape and  to  do  damage  if  it  escapes 
(Canon  City  v.  Oxtoby  (1909),  45 
Colo.  214,  100  Pac.  1127)  ;  and  liable 
absolutely,  irrespective  of  negligence 
(with  a  query  as  to  "act  of  God." 
Garnet  etc.  Co.  v.  Sampson  (Colo.), 
110  Pac.  79,  affirming  Larimer  Ditch 
Co.  v.  Zimmerman,  4  Colo.  App.  78, 
34  Pac.  1111)  ;  Sylvester  v.  Jerome, 
19  Colo.  128,  34  Pac.  760;  and  this 
is  not  changed  by  the  statutes  re- 
quiring supervision  by  State  Engineer 
(Garnet  Co.  v.  Sampson,  supra).  But 
there  is  some  question  how  far  this 
applies  only  to  reservoirs  or  also  to 
ditches,  Ibid.,  and  Middlekamp  v. 
Bessemer  etc.  Co.,  46  Colo.  102,  103 
Pac.  280,  23  L.  R.  A.,  N.  S.,  795. 

Idaho. — Ditch-owner  liable  to  land- 
owner for  damages  from  breakage, 
whether  neglect  or  accident  (unless 
unavoidable).  McLean's  Rev.  Codes 
Idaho,  sec.  3300;  Rev.  Stats.  1887,  sec. 
3181,  llth  Ter.  Sess.  (1881),  269. 

Washington. — In  a  Washington  case 
it  is  held  that  one  who  places  ob- 
structions in  a  navigable  stream  does 
so  at  his  peril  as  to  any  damage  to 
landowners,  and  negligence  need  not 
be  shown.  Gilson  v.  Cascade  etc.  Co. 
(1909),  54  Wash.  289,  103  Pac.  11. 

Wyoming. — Rev.  Stats.  1899,  sees. 
901,  974,  3069. 

Statutory  liabilities  sometimes  ap- 
pear in  the  water  codes  making  it  a 
misdemeanor  to  use  works  without  the 
permission  of  the  State  Engineer  as 
to  their  safety;  e.  g.,  N.  M.  Stats. 
1907,  p.  71,  sec.  33;  S.  D.  Stats.  1907, 
c.  180,  sec.  28. 


§461  Ch.  20.     MEANS  OF  USE.  (3ded.)491 

the  circumstances,  applies.9  The  owner  of  a  millrace  must  use 
care  "proportionate  to  the  danger"  to  prevent  the  water  from 
escaping  and  percolating  through  the  banks  to  the  injury  of  the 
adjacent  property  owners,10  and  if  a  dam  breaks  without  his 
fault,  he  must  repair  it  as  soon  as  practicable.11 

In  one  case  the  test  is  said  to  be:  "The  true  test,  considering 
all  the  circumstances,  is,  ought  a  competent  and  skillful  engineer 
reasonably  to  have  anticipated  such  a  flood  as  caused  the  damage 
to  the  plaintiff  and  to  have  made  provision  therefor?"12  though 
that  seems  to  put  too  strong  an  interpretation  on  due  care  when 
separated  from  the  facts  of  that  case;  for  it  is  a  simple  question 
of  fact  as  to  what  is  due  care  in  each  case,  on  the  part  of  an 
ordinary  prudent  man,  and  not  necessarily  a  skillful  engineer. 
The  failure  to  employ  a  skillful  engineer,  or  to  act  as  such  a  per- 
son would,  may  be  evidence  of  negligence,  but  it  is  simply  a  fact 
for  the  jury  to  consider  in  deciding  whether  such  care  was  used 
as  an  ordinary  prudent  man  would  have  used  under  the  circum- 
stances. The  law  seeks  only  to  preserve  the  ordinary  course  of 
things;  and  if  damage  then  occurs,  it  must  lie  where  it  falls.  An 
instruction  that  defendant  must  use  the  care  of  "a  very  prudent 
man"  is  held  erroneous.13 

Where  all  the  land  in  controversy  was  mineral  land,  one  party 
cleared  off  a  portion  of  his  claim  and  planted  it  to  potatoes.  In 
the  irrigation  of  his  crop  the  water  percolated  through  and  into 
the  mining  tunnel  of  plaintiffs,  and  they  sought  to  restrain  him 
from  such  use  of  his  land.  The  court  says:  "The  defendant  had 
the  undoubted  right  to  cultivate  and  plant  this  tract  of  land,  and, 
having  planted  it,  there  can  be  as  little  question  that  he  had  the 
same  right  to  irrigate  it  for  the  purpose  of  maturing  his  crop. 
In  irrigating  his  land  the  defendant  is  subject  to  the  maxim, 
'Sic  utere  tuo  ut  alienum  non  laedas.'  An  action  cannot  be  main- 

»  Wolf  v.  St.  Louis  etc.  Co.,  10  Cal.  Weidekind    v.    Tuolumne    Water    Co., 

54-1,    10    Morr.    Min.    Ecp.    636,    and  65  Cal.  431,  4  Pac.  415,  it  was  held 

cases  just  cited.     Cf.,  also,  Parker  v.  erroneous    to    charge    that    there    was 

Gregg,  136  Cal.  413,  69  Pac.  22.  negligence  unless  the  dam  had  certain 

10  Scott  v.  Longwell,  139  Mich.  12,  kind  of  gates,  or  was  built  of  certain 
102  N.  W.  230,  5  Ann.  Gas.  679.  dimensions    or    of    certain    material. 

11  Hoffman    v.    Tuolumne     Co.,   10  "And  we  think  the  court  erred  in  charg- 
Cal.  418.  ing  that  'it  was  the  duty  of  the  de- 

12  Price  v.  Oregon  etc.  Co.,  47  Or.  fendant    to    constantly    examine    said 
350,  83  Pac.  843.  dam   during   the   season   of   freshets.' 

13  Wolf   v.    St.   Louis   Co.,   10   Cal.  That  might  depend  on  circumstances, 
544,    10    Morr.    Min.    Eep2    636.     In  and  should  have  been  left  to  the  jury." 


492  (3d  ed.)     Pt.  III.     THE  LAW  OF  PRIOR  APPROPRIATION.         §  462 

tained  against  him  for  the  reasonable  exercise  of  his  right, 
although  an  annoyance  or  injury  may  thereby  be  occasioned  to 
the  plaintiffs.  He  is  responsible  to  the  plaintiffs  only  for  the 
injuries  caused  by  his  negligence  or  unskillfulness,  or  those 
willfully  inflicted  in  the  exercise  of  his  right  of  irrigating  his 
land."14 

The  ditch-owner  is  not  per  se  liable  for  damages  from  leakage 
caused  without  negligence  by  the  activity  of  some  burrowing 
animal,15  but  it  is  otherwise  where  the  ditch-owner  was  also  negli- 
gent.18 

It  has  been  held  that  notice  or  warning  to  the  ditch-owner 
is  sufficient  to  fix  him  with  negligence  if  he  remains  inactive  and 
the  damage  occurs  thereafter.17 

Concerning  contributory  negligence,  some  references  are  given 
in  the  note.18 

(3d  ed.) 

§  462.  Same— Floods. — Where  the  overflow  results  from  a 
flood,  it  is  still  a  question  of  use  of  due  care;  there  being  no  lia- 
bility for  such  extraordinary  floods  as  would  surprise  caution, 
but  being  liable  where  the  floods  were  periodical  or  might  have 
been  anticipated.  There  is  no  liability  for  damage  from  floods 

14  Gibson  v.  Puchta,  33  Gal.  310,  12  IT  Greeley    etc.    Co.    v.    House.  14 

Morr.  Min.  Rep.  227.  Colo.   549,   24  Pac.   329;    McCarty  v. 

Damage  from  seepage  from  irriga-  Boise   etc.   Co.,   2   Idaho    (225),    245, 

tion   and   from   ditches   used   in   irri-  10  Pac.  623. 

gation   is  held  not  actionable  in  the  18  As  to  the  effect  of  contributory 

absence  of  negligence,  but  actionable  negligence,  see  Shields  v.  Orr  etc.  Co., 

when    negligent.     Paolini    v.    Fresno  23  Nev.  349,  47  Pac.  194;  McLeod  v. 

etc.  Co.  (1908),  9  Cal.  App.  1,  97  Pac.  Lee,  17  Nev.  103,  28  Pac.  124;  Fraler 

1130.     Citing  Shields  v.  Orr  etc.  Co.,  v.  Sears  etc.  Co.,  12  Cal.  555,  73  Am. 

23  Nev.  349,  47  Pac.  194,  and  Parker  Dec.    562,    12    Morr.    Min.    Rep.    98; 

V.   Larsen,   86   Cal.    236,   21   Am.   St.  Consolidated    etc.    Co.    v.    Hamlin,    6 

Rep.  30,  24  Pac.  989,  but  not  citing  Colo.  App.  341,  40  Pac.  582 ;  Arave  v. 

Gibson    v.    Puchta.     (The     case     of  Idaho   C.   Co.,   5    Idaho,    68,   46   Pac. 

Parker  v.  Larsen,  supra,  seems  to  hold  1024 ;  Stuart  v.  Noble  D.  Co.,  9  Idaho, 

that  negligence  need  not  be  shown.)  765,  76  Pac.  255;   Jenkins  v.  Hooper 

As  to  water  doing  damage  from  dif-  Irr.  Co.,  13  Utah,  100,  44  Pac.  829 ; 

fused  percolation,  see,  also,  Moore  v;  Lisonbee  v.  Monroe  Irr.  Co.,  18  Utah, 

Berlin   Co.,   74   N.   H.   305,    124   Am.  343,    72   Am.   St.   Rep.    784,   54   Pac. 

St.  Rep.  968,  67  Atl.  578,  11  L.  R.  A.,  1009;  North  Point  Co.  v.  Utah  Co.,  16 

N.  S.,  284,  13  Ann.  Gas.  217,  repudiat-  Utah,  246,  67  Am.   St.   Rep.   607,  52 

ing  the  rule  of   Fletcher  v.  Rylands,  Pac.  168,  40  L.  R.  A.  851;  Bacon  v. 

and  holding  that  negligence  must  be  Kearney,    1    Cal.    App.    275,    82    Pac. 

shown.  84;   McLellan  v.  Brownsville  etc.  Co., 

is  Tenney   v.    Miners'    etc.     Co.,    7  46  Tex.  Civ.  App.  249,  103  S.  W.  207; 

Cal.  335,  11  Morr.  Min.  Rep.  31.  Malmstrom  v.  People's  D.  Co.  (Nev.), 

16  Greeley    etc.     Co.   v.    House,    14  107  Pac.  98. 
Colo.  549,  24  Pac.  329. 


§462  Ch.20.     MEANS  OF  USE.  (3ded.)493 

that  could  not  be  anticipated,19  or  from  rainstorms  of  such 
unusual  severity  as  to  surprise  caution.20  A  flood  resulting  from 
an  unprecedented  rainstorm  causes  no  liability,21  but  floods  that 
are  of  periodical  occurrence  must  be  guarded  against  by  the  ditch- 
owner,  as  it  is  possible  to  take  precautions  against  floods  of  that 
kind.22  In  the  last  case  cited  in  the  foregoing  note  the  court 
says:  "The  injury  complained  of  occurred  in  a  season  of  high 
water  caused  by  the  melting  of  the  snow  on  the  mountains  above. 
The  overflow  so  caused  is  periodical,  and  may  be,  and  is,  antici- 
pated by  all  persons  inhabiting  the  regions  where  the  alleged 
damage  occurred.  The  obligation  rested  on  defendant  to  keep 
the  banks  of  its  canal  in  repair.  It  was  bound  to  use  ordinary 
diligence  for  this  purpose.  The  diligence  required,  however,  must 
be  commensurate  with  the  duty,  and  the  duty  is  that  ordinarily 
employed  by  a  prudent  business  man  when  dealing  with  his  own 
affairs  under  the  circumstances  which  surround  him  and  call  his 
mind  and  energy  into  action."23  In  another  case  it  is  said: 
"If  the  defendant  was  not  bound  to  provide  against  unheard-of 
floods,  he  was  at  least  bound  to  provide  against  such  as  had 
occurred  not  more  than  three  years  prior  to  the  construction  of 
the  ditch."24  Extraordinary  rainfalls  must  be  guarded  against 
if  experience  shows  them  to  be  recurrent  even  though  at  irregular 
intervals.25 

It  is  thus  not  true  to  say  that  only  "acts  of  God"  absolve  from 
liability  for  flood,  since  'reasonable  care  cannot  guard  against  some 
floods  which  still  fall  short  of  technical  "vis  major."  Only  vis 
major  will  absolve  from  breach  of  contract,  however,  as  distin- 
guished from  tort,  and  dealing  with  a  contract  in  this  connection, 
it  has  been  said  that  floods  or  extraordinary  freshets,  in  order  to 
come  within  "act  of  God"  must  be  more  than  such  rises  or  high 

19  Proctor  v.  Jennings,   6  Nev.  83,  Bluick  v.  Chicago  etc.  Co.  (Iowa),  115 

3  Am.  Kep.   240,  4  Morr.  Min.   Rep.  N.  W.  1013. 

265.  22'  The  Salton  Sea  Cases,  172  Fed. 

,,                     n       10  820;   Turner  v.  Tuolumne  etc.  Co.,  26 

*£USP%  \  M°°I°y  784"  II  Cal-  397,  1  Morr.  Min.  Rep.  107;  Chi- 
Utah  343,  72  Am.  St.  Rep.  784,  54  dester  y>  Consolidated  D£ch  c£  59 

Pac.  1009.  Cal    197 

21  Mathews  v.  Kinsell,  41  Cal.  512;  23  Chidester  v.  D.  Co.,' supra. 

Chidester   v.    Consolidated   Ditch   Co.,  24  Burbank  v.   West   Walker  River 

59    Cal.    197;    Town    of    Jefferson    v.  Ditch  Co.,   13  Nev.  431. 

Hicks,     23     Okl.    684,    102     Pac.     79  25  Fairbury  etc.  Co.  v.  Chicago  etc. 

(dictum);    Bridgeport    v.    Bridgeport  Co.,  79  Neb.  854,  113  N.  W.  535,  13 

etc.   Co.,   81   Conn.    84,   70   Atl.    650;  L.  R.  A.,  N.  S.,  542. 


494  (3d  ed.)     Pt.  III.     THE  LAW  OF  PEIOR  APPROPRIATION.         §  463 


water   in   a   stream   as   are   usual   and   ordinary   and   reasonably 
anticipated  at  particular  periods  of  the  year.1 

Floods  recurrent,  though  at  irregular  intervals,  are  not  within  ' '  act 
of  God,"  so  as  to  protect  a  gold-dredging  company  from  damage  to 
a  populous  community  by  overflow  of  dam.2 

(3d  ed.) 

§  463.  Same. — The  statute  of  limitation  on  an  action  for  dam- 
age from  seepage  begins  to  run,  not  from  construction  of  the 
canal,  but  from  the  first  visible  damage,  if  of  a  permanent  kind ; 
and  successive  actions  will  not  lie.  The  statutory  limitation  is 
complete  within  the  period  after  the  first  visible  damage.3 

The  owner  of  land  upon  a  watercourse  may  construct  an  em- 
bankment thereon  to  protect  his  land  from  the  superabundant 
water  in  times  of  flood,  but,  in  doing  so,  he  must  so  erect  it  that 
the  natural  and  prbbable  consequences  of  the  embankment  in 
times  of  ordinary  floods  will  not  be  to  cause  the  overflow  water 
to  erode  or  destroy  the  lands  of  other  proprietors  on  the  stream.4 
A  railway  must  provide  culverts  over  a  ravine,  even  though  not  a 
watercourse.5 


1  Ryan  v.   Rogers,  96  Gal.  349,  31 
Pac.   244.     See   Mulrone   v.   Marshall, 
35  Mont.  238,  88  Pac.  797. 

Concerning   damages   from  flood  in 
general,  see  57  Cent.  L.  J.  268. 

2  City  of  Oroville  v.  Indiana  Gold 
Dredging   Co.    (Cal.   1908),   165   Fed. 
550.     See  "Storm  Waters,"  supra,  sec. 
347.     Act    of    God    denned    (floods). 
Gibson  v.  Cascade  etc.  Co.  (1909),  54 
Wash.  289,  103   Pac.   11;   Salton  Sea 
Cases,    172    Fed.    792;    City   of    Oro- 
ville   v.    Indiana    etc.    Co.,    165    Fed. 
550;    Chidester    v.    D.    Co.,    59    Cal. 
203;   Greeley  Irr.  Co.  v.  Von  Trotha 
(Colo.),    108    Pac.    985.     Extraordi- 
nary flood   held   act   of   God.     Eagan 
v.  Central  Vermont  Ry.,  81  Vt.   141, 
130     Am.     St.     Rep.     1031,     69     Atl. 
732,    16   L.   R.    A.,   N.    S.,   928.     De- 
fendant  has    burden    of   proving    act 
of  God.     Buel  v.  Chicago  etc.  Co.,  81 
Neb.   130,   116   N.   W.   299.     An   "ex- 
traordinary   flood"    is    one    of    those 
visitations  whose  coming  is  not  fore- 
seen  by   the   usual   course   of   nature, 
and  whose  magnitude  and  destructive- 
ness  could  not  have  been  anticipated 
and    prevented    by    the    exercise    of 

§§  464-472.     (Blank  numbers.) 


ordinary  foresight.  (Quoting  13  Ency. 
of  Law,  2d  ed.,  p.  686.)  Town  of 
Jefferson  v.  Hicks  (1909),  23  Okl. 
684,  102  Pac.  79.  See  Broadway  Mfg. 
Co.  v.  Leavenworth  Co.,  81  Kan.  616, 
106  Pac.  1034. 

3  Middlekamp  v.  Bessemer  etc.  Co. 
(1909),  46  Colo.  102,  103  Pac.  280,  23 
L.  R.  A.,  N.  S.,  795. 

4  Town     of     Jefferson     v.      Hicks 
(1909),  23  Okl.  684,  102  Pac.  79. 

5  Quinn    v.    Chicago    Ry.    etc.    Co. 
(1909),  23  S.  D.  126,  120  N.  W.  884. 
See  Missouri  etc.  Co.  v.  Cannon  (Tex. 
Civ.  App.),  Ill  S.  W.  661. 

Concerning  injunction  against  struc- 
tures which  cause  flooding  of  land  by 
obstructing  the  flow  of  water,  see 
Pealer  v.  Gray's  etc.  Co.  (1909),  54 
Wash.  415,  103  Pac.  451;  Hastie  v. 
Jenkins  (1909),  53  Wash.  21,  101  Pac. 
495 ;  Gibson  v.  Cascade  etc.  Co. 
(1909),  54  Wash.  289,  103  Pac.  11. 

Measure  of  damages  for  flooding. 
See  Tosini  v.  Cascade  etc.  Co.  (S.  D. 
1908),  117  N.  W.  1037. 

Regarding  floods,  see,  also,  supra, 
sec.  348,  and  infra,  sec.  828. 


§473  Ch.21.     QUANTITY  OF  WATER.  (3ded.)  495 


CHAPTER  21. 
LIMITATIONS  ON  QUANTITY  OF  WATER. 

A.     CAPACITY  OF  STRUCTURES. 
§  473.     Introductory. 
§  474.     The  original  claim. 

§  475.     Capacity  of  ditch — The  possessory  test. 
§  476,     Capacity  of  ditch  ceasing  to  be  a  measure. 
§  477.     Same. 

•  B.     BENEFICIAL  USE. 

§  478.     Beneficial  use — The  final  test. 
§  479.     Same — Even  if  less  than  capacity  of  ditch. 
§  480.     Time  at  which  beneficial  use  is  to  be  figured. 
§  481.     What  constitutes  waste. 
§  482.     Same. 

C.     ANNUAL  INCREASE  OF  USE. 
§  483.     Future  needs. 
§  484.     Same. 
§  485.     Same. 
§  485a.  Same. 

D.     DUTY  AND  MEASUREMENT  OF  WATER. 
§  486.     Measurement  of  water. 
§  487.     Duty  of  water. 

§  488.     Duty  of  water  as  affected  by  loss  in  transmission.          • 
§  489.     Summary. 
§§  490-495.     (Blank  numbers.) 

A.     CAPACITY   OF  STRUCTURES. 

(3d  ed.) 

§  473.  Introductory. — Three  tests  of  quantity  are  found  in 
the  decisions.  First,  the  original  claim,  which  must  obviously 
be  so  because  of  the  rule  permitting  successive  appropriations. 
Second,  the  capacity  of  the  ditch,  because  an  appropriation, 
being  created  by  taking  possession  of  the  stream,  could  not 
exceed  the  amount  diverted  and  taken  into  possession.  In  the 
early  cases,  when  the  right  was  unquestionably  accepted  as  a 
possessory  right  on  the  public  domain,  the  capacity  of  the  ditch 
was  frequently  taken  as  the  chief  test,  because  it  fixed  the  amount 
in  possession.  Third,  the  amount  beneficially  used,  because  all 
that  is  not  used  within  a  reasonable  time  is  regarded  as  aban- 


496  (3d  ed.)     Pt.  III.     THE  LAW  OF  PRIOR  APPROPRIATION.         §  474 

doned.  To-day,  however,  the  third  has  overshadowed  all  the 
others,  being  narrower  than  the  others,  and  now  most  strongly 
insisted  upon;  being  the  strongest  instance  of  the  change  now 
going  on  in  the  law  from  a  possessory  system  to  a  specific  use 
system.1 

(3d  ed.) 

§  474.    The  Original  Claim. — The  appropriator  is  limited  to  the 

quantity  first  appropriated,  and  he  cannot  divert  more  than  that 
as  against  subsequent  appropriators.2  By  the  early  law  before 
the  code  in  California  the  appropriator  was  limited  to  the  amount 
originally  claimed,  and  the  amount  claimed  .was  determined 
largely  from  the  means  used,  and  the  purpose  intended,3  and  such 
would  still  be  the  rule  in  California  for  an  appropriator  by  actual 
diversion,  the  code  formalities  not  being  followed.  An  appro- 
priation made  under  the  present  statutes  of  all  States,  however, 
requires  the  amount  claimed  to  be  specially  stated  in  the  notice  or 
in  the  application  for  permit,  and  the  appropriation  is  limited  to 
that  as  the  maximum.4 

The  amount  claimed  in  the  notice  is  the  first  limit.5  This  is 
quite  obvious,  being  necessary  for  the  protection  of  subsequent 
appropriators.  As  against  subsequent  appropriators  not  existing 
at  the  time  of  the  enlargement  of  one's  claim,  however,  the  en- 
largement may,  of  course,  be  made,  just  as  a  new  appropriation 
could  be  made,  being  in  accord  with  the  established  doctrine  of 
priority.6 

(3d  ed.) 

§  475.  Capacity  of  Ditch — The  Possessory  Test. — The  ap- 
propriator, by  claiming  more  than  he  actually  diverts,  gets 
no  right  to  divert  the  surplus  later  as  against  intervening  claim- 
ants ;  and  hence,  the  capacity  of  his  ditch,  if  less  than  the  amount 

1  See    cross-references,    supra,    sec.  Co.,   13   Cal.   220,   1   Morr.   Min.  Rep. 
139.  626;  McKinney  v.  Smith,  21  Cal.  374, 

2  Senior  v.  Anderson,  115  Cal.  496,  1    Morr.    Min.    Rep.    650;    Toohey   v. 
47  Pac.  454;  Union  etc.  Co.  v.  Dang-  Campbell,  24  Mont.  13,  60  Pac.  396. 
berg,   81   Fed.   73;   Becker  v.   Marble  4  Supra,  sec.  371  et  seq.,  408  et  seq. 
Creek  etc.  Co.,  15  Utah,  225,  49  Pac.  5  Last  Chance  etc.  Co.  v.  Heilbron, 
892,  1119.  86  Cal.  1,  26  Pac.  523. 

3  White  v.   Todd's  Valley  etc.   Co.,  .        6  Beaver  etc.  Co.  v.  St.  Vrain  etc. 
8  Cal.  443,  68  Am.  Dec.  338,  4  Morr.  Co.,  6  Colo.  App.  130,  40  Pac.  1066; 
Min.  Rep.  536;   Ortman  v.  Dixon,  13  Hector  etc.  Co.  v.  Valley  etc.  Co.,  28 
Cal.  33  j  McDonald  v.  Bear  River  etc.  Colo.  315,  64  Pac.  205. 


§475  Ch.  21.     QUANTITY  OF  WATEE.  (3ded.)  497 

claimed,  is  the  second  test  of  the  amount  to  which  he  is  entitled, 
allowing  a  reasonable  time  after  completion  of  the  ditch  to  remove 
boulders  or  other  obstructions.7  The  quantity  of  water  appro- 
priated is  measured  by  the  capacity  of  the  ditch  at  the  smallest 
point,  as  determined  by  evidence  of  size  and  grade.8  An  appro- 
priation is  limited  to  capacity  of  ditch,  and  surplus  thereover 
belongs  to  later  appropriators.9  The  rule  under  these  circum- 
stances was  thus  stated  by  the  early  supreme  court  of  Califor- 
nia:10 "He  is  entitled  to  have  the  water  [of  the  stream  flowing 
down  to  his  ditch]  undiminished  in  quantity,  so  as  to  leave  suffi- 
cient to  fill  his  ditch  as  it  existed  at  the  time  the  subsequent 
appropriations  above  him  were  made."  The  early  supreme  court 
of  Nevada  formulated  the  rule  in  somewhat  more  precise  terms. 
"It  seems  that  the  quantity  of  water  appropriated  is  to  be  meas- 
ured by  the  capacity  of  the  ditch  or  flume  at  its  smallest  point, 
that  is,  at  the  point  where  the  least  water  can  be  carried  through 
it."11  Rights  of  tenants  in  common,  claiming  a  water-right 
through  the  construction  of  a  canal,  are  determined  by  the  capac- 
ity of  the  canal,  and  not  by  the  subsequent  diversion.12 
.  In  determining  what  the  capacity  of  a  given  ditch  is,  in  a  case 
where  testimony  respecting  the  carrying  capacity  of  a  ditch 
varied  from  two  hundred  and  twenty-nine  to  six  hundred  inches, 
the  court',  after  examining  the  evidence,  found  the  true  capacity 
to  be  only  three  hundred  inches,  and  held  that  a  ditch  of  capacity 
of  three  hundred  inches  at  the  intake  should  deliver  to  the  place 
of  use  four  miles  away,  two  hundred  and  seventy  to  two  hundred 
and  eighty  inches,  the  difference  being  the  allowance  for  seepage 

7  White  v.   Todd's  etc.  Co.,  8  Cal.  8  Ophir  S.  M.  Co.  v.  Carpenter,  6 

443,  68   Am.  Dec.  338,  4  Morr.  Min.  Nev.    393,    4    Morr.    Min.    Rep.    653; 

Eep.   536;    Ortman  v.  Dixon,   13   Cal.  Barnes  v.  Sabron,  10  Nev.  217,  4  Morr. 

33;   McKinney  v.  Smith,  21  Cal.  374,  Min.  Rep.  673;   Caruthers  v.  Pember- 

1  Morr.  Min.  Rep.  650;  Posachane  etc.  ton,  1  Mont.  Ill,  4  Morr.  Min.  Rep. 

Co.  v.  Standart,  97  Cal.  476,  32  Pae.  622;  Browning  v.  Lewis,  39  Or.  11,  64 

532;  Bean  v.  Stoneman,  104  Cal.  49,  Pac.  304. 

37  Pac.  777,  38  Pac.  39;  Senior  v.  An-  9  Driskill  v.   Rebbe,   22   S.  D.   242, 

derson,    115    Cal.    496,   47    Pac.    454;  117  N.  W.  135. 

San  Luis  etc.  Co.  v.  Estrada,  117  Cal.  10  Bear  R.  Co.  v.  New  York  Co.,  8 

168,  48  Pac.  1075;  McDonald  v.  Lan-  Cal.  327,  4  Morr.  Min.  Rep.  526. 

nen,     19    Mont.     78,    47     Pac.     648;  11  Ophir  S.  M.  Co.  v.  Carpenter,  4 

Whited  v.  Gavin  (Or.),  105  Pac.  396;  Nev.  534,  4  Morr.   Min.  Rep.   640,   6 

Pomeroy  on  Riparian  Rights,  sees.  80,  Nev.  393,  4  Morr.  Min.  Rep.  653. 

81;   Kinney   on   Irrigation,   sees.   162,  12  Hough  v.  Porter,  51  Or.  318,  95 

166.     See  60  Am.  St.  Rep.  808,  814,  Pac.  732,  98  Pae.  1083,  102  Pac.  728. 
note. 

Water  Rights — 32 


498  (3d  ed.)     Pt.  III.     THE  LAW  OF  PRIOR  APPROPRIATION.         §  475 

and  evaporation  in  transit.13  Carrying  capacity  of  ditch  can  be 
determined  from  width,  depth  and  grade.14 

Under  a  statute  in  Colorado,15  appropriations  may  be  made  for 
filling  a  reservoir,  measured  by  the  capacity  of  the  reservoir  on 
a  single  filling.  In  Windsor  Co.  v.  Lake  Supply  Co.16  it  was 
held  that  the  Colorado  statute  providing  for  reservoir  appropria- 
tions forbids  more  than  one  filling  on  one.  priority  in  any  one 
year,  as  against  other  reservoirs  not  yet  filled.17  As  to  a  ditch, 
"capacity"  means  continuing  carrying  capacity,  in  consideration 
with  beneficial  use,  but  as  to  a  reservoir,  it  means  capacity  in  one 
complete  filling  only.18 

The  investigations  of  the  United  States  Department  of  Agri- 
culture of  the  capacity  of  various  types  of  conduits  19  show  that 
there  is  a  wide  variation  of  loss.  (Even  in  the  same  canal  ten 
times  as  much  water  will  be  lost  at  one  time  than  at  another). 
Large  canals  lose  less  than  small  ones.  The  loss  for  all  canals 
taken  by  straight  average  is  probably  about  five  and  seventy- 
seven  one-hundredths  per  cent  per  mile.  Between  stream  and 
land  a  total  of  fifty  per  cent  is  lost  in  old  canals  and  sixty  per 
cent  in  new  ones.  Cement-lined  canals  lose  little  in  transporta- 
tion. For  example,  the  Gage  canal  in  Southern  California  is 
cement  lined  and  the  water  is  distributed  through  underground 
pipes  and  ninety-two  per  cent  of  the  water  reaches  the  land.20 
Canals  without  lining  at  all  require  about  three  and  five-tenths  to 
four  acre-feet  per  year  at  the  head,  after  conditions  have  become 
settled. 

13  Hough  v.  Porter,  51  Or.  318,  95  18  "A  reservoir  appropriation,   like 
Pac.  732,  98  Pac.  1083,  at  1105,  102  that  for  a  canal,  cannot  be  made  to 
Pac.  728.  do  double  duty.     To  permit  a  double 

14  Bates  v.   Hall,  44  Colo.   360,  98  filling  of  a  reservoir  in  any  one  year 
Pac.   3.     And  as  to   measurement   of  on  one  appropriation,  as  against  junior 
capacity  of  ditch,   see  Water   Supply  rights,    is    just    as    obnoxious    to    the 
Co.  v.  Larimer  etc.  Co.,  24  Colp.  322,  principle  mentioned  as  if  the   appro- 

.51  Pac.  496,  46  L.  R.  A.  322;  Broad-  priation     for     immediate     irrigation, 

moor  etc.  Co.  v.  Brookside  etc.  Co.,  24  through   a   canal,    after   it   had   been 

Colo.  541,  52  Pac.  792.  applied    to    the    particular    land    for 

15  M.  A.  S.,  sees.  2403,  2408.  which  it  was  diverted,  was  then  made 

16  44  Colo.  214,  98  Pac.  729.  to  serve  other  lands."    Windsor  Co.  v. 

17  Quaere,  whether,  after  all  reser-  Lake  Supply  Co.,  44  Colo.  214,  98  Pac. 
voirs  in  a  water  district  have,  in  any  729. 

one  season  or  year,  been  once  filled  to  19  Report   of   Office   of  Experiment 

their  decreed  capacity,  a  second  filling  Stations  for  yecr  ending  June,  1908, 

may  be  had,  and,  if  so,  in  what  order  page  370  et  seq. 

they    shall   be   filled.     Left    open   in  20  "While   there   is   no    doubt    that 

same  ease.  cement  concrete  is  the  most  effective 


§476  Ch.  21.     QUANTITY   OF  WATER.  (3d  ed.)  499 

(3d  ed.) 

§  476.  Capacity  of  Ditch  Ceasing  to  be  a  Measure. — Meas- 
urement of  right  by  capacity  of  ditch  is  an  instance  of  the 
possessory  origin  of  the  law,  and  its  displacement  as  a  measure 
by  beneficial  use  is  an  instance  of  how  the  possessory  origin  of 
the  law  is  disappearing. 

The  right  arose  as  a  possessory  one  on  the  public  domain 
(though  turned  into  a  freehold  by  the  act  of  1866),  and  as  such 
took  on  the  characteristics  based  upon  the  idea  of  possession 
of  the  stream  or  of  a  portion  of  its  flow.  Actual  diversion  (the 
taking  of  possession)  created  the  right;  capacity  of  ditch  (the 
amount  in  possession)  measured  the  right;  the  right  to  possession 
was  independent  of  mode  or  place  of  use,  which  could  be  changed 
at  will;  the  right  to  the  flow  remained  until  actual  abandonment 
(voluntary  relinquishment  of  possession).  Hence  the  above  rul- 
ings making  capacity  of  works  the  test,  supported  by  cases  of 
which  Moore  y.  Clear  Lake  W.  W.21  is  a  leader,  applying  the  doc- 
trine of  injuria  sine  damno  to  protect  the  flow  to  ditch  capacity, 
even  though  plaintiff  were  not  then  using  the  water  and  suffered 
no  present  damage  (so  long  as  he  did  not  intend  an  abandon- 
ment).22 Thus,  in  the  case  just  cited,  frequently  since  approved, 
it  was  laid  down  (as  the  headnote  correctly  reports)  :  "In  an  ac- 
tion to  restrain  the  diversion  of  water  from  a  stream,  the  com- 
plaint alleged  that  the  plaintiff  was  the  owner  and  in  possession 
of  a  certain  ditch  connected  with  the  stream,  and  that  he  had  a 
right  to  appropriate  for  use  and  distribution  so  much  of  the  water 
of  the  stream  as  the  ditch  had  capacity  to  carry.  Held,  that  an 
allegation  to  the  effect  that  the  plaintiff  was  in  a  position  to  use 
or  distribute  the  water  was  unnecessary. ' '  * 

as  regards  seepage,  it  is  also  the  most  the  ditch  with  oil  may  be  justified, 
expensive,  the  cost  being  more  than  while  a  more  expensive  lining  would 
six  times  that  of  the  heavy  oil  lining  be  impracticable.  The  durability  of 
(three  and  two-thirds  gallons  -per  the  oil  lining  has  not  been  thoroughly 
square  yard),  which  saved  fifty  and  tested,  and  it  may  be  that  more  ex- 
four-tenths  per  cent  of  the  water  which  tended  experience  will  show  them  to  be 
would  have  been  lost  were  the  ditch  less  valuable  than  these  experiments 
not  lined,  while  the  saving  with  the  would  indicate." 

concrete   ditch   is   eighty-six   and   six-  21  68    Cal.    147,    8    Pac.    816.     See 

tenths  per  cent,  or  only  one  and  three-  infra,  sec.  642. 

fourths  times  as  large.     Where  water  22  See    cross-references    supra,    sec. 

is  very  valuable  there  is  no  doubt  that  139. 

the  concrete  ditch  is  more  permanent  1  In  the  opinion  it  is  said,  among 

and  economical.     But  where  the  water  other  things:   "Here  the  point  is  made 

is  not  so  scarce,  and  a  little  waste  will  that  the  court  fails  to  show  that  the 

do  ao  damage,  the  expense  of  lining  plaintiff  is  in   a  position  to  use   the 


500   (3d  ed.)     Pt.  III.     THE  LAW  OF  PRIOR  APPROPRIATION.         §  476 

A  change,  however,  is  rapidly  going  on  in  the  law  from  a  posses- 
sory to  a  specific  use  system,  and  capacity  of  ditch  has  been  almost 
wholly  displaced  by  beneficial  use  as  a  measure  of  right.  The  first 
step  in  this  regard  was  to  allow  ditch  capacity  to  govern  only 
for  a  certain  number  of  years,  making  beneficial  use  the  sole  test 
where  nonuse  exceeded  the  time  limit.  Of  this  restrictive  stage 
Smith  v.  Hawkins  2  is  the  leading  case,  allowing  ditch  capacity  to 
govern  for  five  years,  but  not  if  nonuse  in  whole  or  part  exceeds 
that  period ;  and  following  this  stage,  most  States  by  statute  fixed 
a  similar  time  limit  of  from  two  to  five  years.3  But  the  change  did 
not  stop  with  this  stage.  Now,  the  great  weight  of  authority  dis- 
regards capacity  of  ditch  entirely,  without  regard  to  any  length 
of  time  in  which  it  remained  out  of  use  and  without  regard  to  any 
intention  not  to  abandon  it.  Actual  use  within  a  reasonable  time 
prior  to  the  time  a  controversy  arises  is  alone  the  test  stated  to-day 
in  the  decisions  generally. 

The  reader  should  note  well,  however,  that  this  is  an  instance  of 
a  wide-bearing  change  in  the  law,  leaving  conflicting  lines  of 
authorities  in  this  and  other  connections.  Thus,  the  California  law 
holds  the  law  to  the  public  domain  where  it  had  its  possessory 
origin,  Colorado  does  not;  the  California  code  holds  to  actual 
diversion  as  completing  the  right,  Colorado  holds  to  actual  appli- 
cation to  use;  the  right  is  generally  held  independent  of  mode  or 
place  of  use,  and  yet  there  is  a  strong  tendency  to  make  it  inhere 
inseparably  in  the  specific  initial  use  made  of  it;  some  authorities 
hold  a  distributing  company  which  makes'  the  diversion  to  be  the 
appropriator,  others  the  consumer  who  actually  makes  the  use; 
some  authorities  hold  the  right  to  remain  indefinitely,  though  in 
nonuse,  until  voluntary  intentional  abandonment  of  possession,  and 
grant  injunctions  against  interference,  though  without  damage, 
until  such  abandonment;  others  so  hold  for  a  definite  period  of 
years  though  not  indefinitely,  and  still  others  hold  solely  to  actual 
use  within  a  reasonable  time  before  the  time  of  controversy,  and 
refuse  injunctions  absolutely  in  the  absence  of  actual  damage  to 
present  use ;  most  of  these  conflicting  rulings  being  not  confined  to 
different  jurisdictions,  but  occurring  in  different  cases  within  the 

water   himself,   or   that   he   is  in   any  etc.     Moore  v.  Clear  Lake  Co.,  68  Cal. 

position  which   gives   him   a   right   to  146,  at  150,  8  Pac.  816. 

furnish    the    water    to    others.      The  2  HO   Cal.    122,   42   Pac.  453.     Af- 

allegation  of  these  matters  is  not  es-  firmed  in  120  Cal.  86. 

•ential  to  plaintiff's  cause  of  action,"  *  Infra,  see.  576. 


§477  Ch.  21.     QUANTITY   OF  WATER.  (3ded.)  501 

same  jurisdiction.4  In  other  words,  the  law  is  in  a  state  of  evolu- 
tion, with  the  end  of  making  the  requirements  of  some  specific 
initial  use  its  sole  "basis,  measure,  and  limit."5 

'    (3d  ed.) 

§  477.     Same. — Whether  a  complete  change  from  a  possessory 

to  a  specific  purpose  system  is  desirable  is  a  difficult  question  in  the 
policy  of  the  law.  Under  the  possessory  system,  any  use  which  is 
not  waste  is  a  beneficial  use.  It  admits  of  emphatic  expression.6 
On  the  other  hand,  under  the  specific  use  system,  it  is  sometimes 
stated  as  one  enforcing  economical  use ;  nor  are  these  two  forms  of 
expression  synonymous.7  While  waste  will  not  necessarily  exist 
because  you  might  get  along  with  less,  the  most  economical  use 
would  require  the  lesser  use  and  make  irrigation  perilous.  It  is 
frequently  said 8  that  the  appropriators  and  users  of  the  waters 
will  be  required  and  commanded  to  so  divert,  use  and  apply  the 
waters  as  to  secure  the  largest  duty  and  greatest  service  therefrom.9 
Yet,  a  lesser  duty  and  service  than  the  largest  might  still  fall 
short  of  waste.  The  difference  in  the  mode  of  expression  is  that 
the  prohibition  of  waste  allows  what  engineers  call  a  "factor  of 
safety";  while  the  requirement  of  most  economical  use  is  like 
keeping  a  bridge  continually  loaded  to  its  theoretical  capacity. 

Some  other  considerations  are  noted  in  a  recent  report  of  the 
United  States    Department    of    Agriculture,  saying:  "The  water 

•*  See    cross-references    supra,    sec.  cannot  waste  it,  but  it  is  their  duty 

139.  to  allow  such  portion  as  they  have  no 

5  See    Drach    v.   Isola   (Colo.),  109  immediate  need  for  to  remain  in  the 
Pac.  748,  as  an  instance  in  Colorado  of  natural  stream,  or,  if  diverted,  to  re- 
how  the  courts  are  revising  the  old  de-  turn  such  surplus  again  into  the  same 
crees   based    upon   capacity   of    ditch,  stream,  where,  unless  they  then  intend 
and    now    holding    them    open    to    re-  to  recapture  it,  it  becomes  subject  to 
examination  based  upon  beneficial  use.  diversion  by  the  various  ditches  in  ac- 

6  Such   emphatic   expressions   there-  cordance  with  their  numerical  priori- 
under    are    possible    as,    for   example,  ties."     Burkart   v.   Meiberg,   37   Colo. 
"Perhaps  the  appellant's  counsel  is  of  187,   86   Pac.   98,   6   L.  R.   A.,  N.   S., 
the   belief   that   the    plaintiff,   having  1104,  citing  La  Jara  Co.  v.  Hansen,  35 
made   the    first    appropriation,    is    en-  Colo.  105,  83  Pac.  644. 

titled  to  have  the  water  come  down  to  7  Judge  J.  M.  Seawell  in  California 

him  to   the   extent   of   his   appropria-  Past.  Co.  v.  Madera  etc.  Co.  (Superior 

tion,  whether  he  has  use  for  it  or  not.  Court   of  Madera  County,  California, 

If  so,  he  is  mistaken.     Water  is  too  Nov.  13,  1906). 

precious  in  this  arid  climate  to  permit  8  For    example,    in    Van    Camp    v. 

its      being      unnecessarily      wasted."  Emery,  13  Idaho,  202,  89  Pac.  752. 

Roeder  v.  Stein,  23  Nev.  92,  42  Pac.  »  "The  highest  and  greatest  possible 

867.    In  another  case :   "If  the  defend-  duty."     Farmers'  etc.  Co.  v.  Riverside 

ants    have    no    present    or    immediate  Irr.   Dist.    (1909),   16   Idaho,   52,   102 

need   of    the    full    quantity    of    water  Pac.  481;  Niday  v.  Barker,  16  Idaho, 

which  they  may  divert  and  use,  they  73,  101  Pac.  254. 


502   (3d  ed.)     Pt.  III.     THE  LAW  OF  PRIOR  APPROPRIATION.         §  478 

laws  of  the  arid  States  are  of  two  general  classes,  considered  from 
this  point  of  view :  those  which  allow  of  the  acquirement  of  rights 
to  definite  quantities  of  water  and  those  which  limit  rights  to  the 
necessities  of  a  definite  tract  of  land.  Under  laws  of  the  former 
class  canal  owners  are  free  to  use  their  water  supply  on  as  large 
or  as  small  an  area  as  seems  to  them  best,  and  since  the  more 
economically  the  water  is  used  the  larger  area  it  will  serve  and  the 
larger  returns  it  will  bring,  every  consideration  leads  to  an  economi- 
cal use  of  water.  Canal  owners  receive  the  direct  benefit  of  their 
economy.  Under  laws  of  the  latter  class,  limiting  rights  to  the 
needs  of  a  particular  tract  of  land,  with  a  maximum  limit  fixed, 
as  in  Wyoming  and  Nebraska,  there  can  be  no  incentive  to  economy, 
since  any  water  made  available  by  economical  use  goes  to  others 
than  the  one  making  the  saving.  The  inevitable  tendency  is  for 
farmers  to  use  as  much  as  possible  within  the  maximum  fixed,  in 
order  that  they  may  not  by  present  economy  decrease  their  supply 
for  future  needs.  The  laws  of  all  .the  arid  States  prohibit  waste 
and  authorize  the  water  officials  to  stop  waste,  but  between  positive 
waste  and  the  most  economical  use  there  is  a  wide  margin.  This 
system  has  the  added  disadvantage  of  making  rights  indefinite. 
When  prior  rights  are  fixed  at  a  definite  quantity  of  water,  subse- 
quent appropriators  know  what  may  be  taken  by  the  prior  appro- 
priators  and  can  estimate  fairly  well  their  own  chances  for  water, 
but  under  the  other  system  a  change  in  the  type  of  agriculture  by 
prior  appropriators  may  so  enlarge  their  use  as  to  destroy  entirely 
the  value  of  later  rights."10 


B.     BENEFICIAL  USE. 
(3d  ed.) 

§  478.  Beneficial  Use — The  Final  Test. — The  appropriator  is 
not  to-day  entitled  to  the  quantity  actually  diverted  and  taken  into 
possession  if  he  uses  only  a  portion  of  it ;  his  right  is  limited  to  the 
amount  so  actually  used.  This  is  now  strenuously  enforced.11 
Actual  use  within  a  reasonable  time  (not  exceeding  the  statutory 

10  Report   of  the  Office  of  Experi-  Haggin,  61  Cal.  305;  Barrows  v.  Fox, 
mont  Stations  of  the  U.  S.  Department  98  Cal.  63,  32  Pac.  811;  Riverside  etc. 
of  Agriculture  for  1908.  Co.  v.  Sargent,  112  Cal.  230,  44  Pac. 

11  Alasla. — Xetchikan   Co.   v.    Oiti-  560;     Santa     Paula     etc.     Works    v. 
zens' Co.,  2  Alaska,  120.  Peralta,    113    Cal.    38,    45    Pac.    168; 

Arizona. — Sullivan  v.  Jones  (Ariz.),  Senior  v.  Anderson,  115  Cal.  496,  47 

108  Pac.  476.  Pac.  454;  Smith  v.  Hawkins,  120  Cal. 

California. — White  v.  Todd's  etc.  86,  52  Pac.  139,  19  Morr.  Min.  Rep. 

Co.,  8  Cal.  443,  68  Am.  Dec.  338,  4  243 ;  Senior  v.  Anderson,  130  Cal.  290, 

Morr.  Min.  Rep.  536 j  Dougherty  v.  at  297,  62  Pae.  563;  Bledsoe  v. 


§478 


Ch.21.     QUANTITY  OF  WATER. 


(3ded.)  503 


period,  if  any,  for  forfeiture  of  right  by  nonuse),12  prior  to  the 
time  a  controversy  arises,  has  become  the  sole  measure  of  right.13 


Decrow,  132  Cal.  312,  64  Pae.  397; 
Barneich  v.  Mercy,  136  Cal.  205,  68 
Pac.  589 ;  x  Strong  v.  Baldwin,  137 
Cal.  432,  70  Pac.  288 ;  Hewitt  v.  Story, 
64  Fed.  510,  12  C.  C.  A.  250,  30  L.  E. 
A.  265.  The  rule  is  enacted  in  section 
1411  of  the  Civil  Code. 

Colorado. — Yunker  v.  Nichols,  1 
Colo.  551,  8  Morr.  Min.  Eep.  64;  Combs 
v.  Agric.  D.  Co.,  17  Colo.  146,  31  Am. 
St.  Eep.  275,  28  Pac.  966;  X.  Y.  etc. 
Co.  v.  Buffalo  etc.  Co.,  25  Colo.  529,  55 
Pac.  720;  Platte  Valley  Co.  v.  Central 
Trust  Co.,  32  Colo.  102,  75  Pac.  391; 
Nichols  v.  Mclntosh,  19  Colo.  22,  34 
Pac.  278;  Church  v.  Stillwell,  12  Colo. 
App.  43,  54  Pac.  395;  United  States 
etc.  Co.  v.  Gallegos,  89  Fed.  772,  32  C. 
C.  A.  470;  Burkart  v.  Meiberg,  37 
Colo.  187,  86  Pac.  98,  6  L.  E.  A.,  N. 
S.,  1104;  Cooper  v.  Shannon,  36  Colo. 
98,  118  Am.  St.  Eep.  95,  85  Pac.  175; 
Town  of  Sterling  v.  Pawnee  Co.,  42 
Colo.  421,  94  Pac.  341,  15  L.  E.  A.,  N. 
S.,  238;  Tubbs  v.  Epberts,  40  Colo. 
498,  92  Pac.  220;  Windsor  Co.  v.  Hoff- 
man Co.  (Colo.  1910),  109  Pac.  423; 
Same  v.  Same  (Colo.  1910),  109  Pac. 
425. 

Idaho. — Van  Camp  v.  Emery,  13 
Idaho,  202,  89  Pac.  752;  Drake  v. 
Earhart,  2  Idaho,  750,  23  Pae.  541; 
Stickney  v.  Hanrahan,  7  Idaho,  424,  63 
Pac.  189;  Kirk  v.  Bartholomew,  2 
Idaho,  1087,  29  Pac.  40. 

Montana. — Toohey  v.  Campbell,  24 
Mont.  13,  60  Pac.  396;  Quigley  v. 
Birdseye,  11  Mont.  439,  28  Pac.  741; 
Kleinschmidt  v.  Greiser,  14  Mont.  484, 
43  Am.  St.  Eep.  652,  37  Pae.  5 
(gradual  increase  allowed) ;  Creek  v. 
Bozeman  W.  Co.,  15  Mont.  121,  38 
Pac.  459;  Anderson  v.  Cook,  25  Mont. 
330,  64  Pae.  873,  65  Pac.  113;  Hilger 
v.  Sieben  (1909),  38  Mont.  93,  98  Pac. 
881;  Stats.  1907,  c.  185,  pp.  109,  489. 
See,  also,  Civ.  Code,  sees.  1881,  1884. 

Nebraska. — Courthouse  etc.  Co.  v. 
Willard,  75  Neb.  408,  106  N.  W.  463; 
Farmers'  Irr.  Dist.  v.  Frank,  72  Neb. 
136,  100  N.  W.  286;  Cobbey's  Ann. 
Stats.,  sees.  6772,  6774. 

Nevada. — Twaddle  v.  Winters,  29 
Nov.  88,  85  Pac.  280,  89  Pac.  289; 
Simpson  v.  Williams,  18  Nev.  432,  4 
Pac.  1213;  Boeder  v.  Stein,  23  Nev. 
92,  42  Pac.  867;  Union  Mill  Co.  v. 
Dangberg  (Nev.),  81  Fed.  73; 


Eodgers  v.  Pitt  (Nev.),  89  Fed.  420, 
129  Fed.  932;  Gotelli  v.  Cardelli,  26 
Nev.  382,  69  Pac.  8;  Berry  v.  Equi- 
table etc.  Co.,  29  Nev.  451,  91  Pac. 
537;  Stats.  1907,  p.  30,  sec.  4. 

New  Mexico. — Millheiser  v.  Long, 
10  N.  M.  99,  61  Pac.  Ill;  Hagerman 
Co.  v.  McMurray  (N.  M.),  113  Pac. 
823,  citing  this  book;  Stats.  1907,  p. 
71,  sees.  2,  39. 

North  Dakota. — Stats.  1905,  c.  34, 
sec.  2;  Eev.  Codes  (1905),  see.  7604 
et  seq. 

Oregon. — Williams  v.  Altnow,  51  Or. 
275,  95  Pac.  200,  97  Pac.  539;  Sim- 
mons v.  Winters,  21  Or.  35,  28  Am.  St. 
Eep.  727,  27  Pac.  7;  Hindman  v. 
Eizor,  21  Or.  112,  27  Pac.  13;  Cole  v; 
Logan,  24  Or.  304,  33  Pac.  568 ;  Bow- 
man v.  Bowman,  35  Or.  279,  57  Pac. 
546;  Cole  v.  Logan,  24  Or.  304,  33 
Pac.  568 ;  Glaze  v.  Frost,  44  Or.  29,  74 
Pac.  336;  Bolter  v.  Garrett,  44  Or. 
304,  75  Pac.  142;  Gardner  v.  Wright, 
49  Or.  609,  91  Pac.  286;  Mann  v. 
Parker,  48  Or.  321,  86  Pac.  598; 
Hough  v.  Porter,  51  Or.  318,  95  Pae. 
732,  98  Pac.  1083,  102  Pae.  728; 
Porter  v.  Pettengill  (Or.  1910),  110 
Pac.  393;  Whited  v.  Gavin  (Or.  1909), 
105  Pac.  396. 

South  Dakota. — Stenger  v.  Tharp, 
17  S.  D.  13,  94  N.  W.  402 ;  Stats.  1907, 
e.  180,  sec.  2. 

Utah. — Manning  v.  Fife,  17  Utah, 
232,  54  Pac.  Ill;  Becker  v.  Marble 
etc.  Co.,  15  Utah,  225,  49  Pac.  892, 
1119;  Hague  v.  Nephi  Irr.  Co.,  16 
Utah,  421,  67  Am.  St.  Eep.  634,  52 
Pae.  765,  41  L.  E.  A.  311 ;  Nephi  Irr. 
Co.  v.  Vickers,  29  Utah,  315,  81  Pac. 
144;  Sowards  v.  Meagher  (Utah, 
1910),  108  Pac.  1113;  Stats.  1911,  c. 
104,  p.  145,  sec.  13,  saying  "irrespec- 
tive of  carrying  capacity  of  ditch." 

Washington. — Pierce's  Code  1905, 
sec.  5836;  Miller  v.  Wheeler  (Wash. 
1909),  54  Wash.  429,  103  Pac.  641,  23 
L.  E.  A.,  N.  S.,  1065. 

Wyoming. — Johnston  v.  Little  Horse 
etc.  Co.,  13  Wyo.  208,  110  Am.  St. 
Eep.  986,  79  Pae.  22,  70  L.  E.  A.  341. 
Stats.  1907,  p.  138,  sec.  12,  saying 
"irrespective  of  carrying  capacity  of 
ditch." 

12  Infra,  sec.  576. 

13  As  to  what  is  a  reasonable  time, 
see  sees.  383,  484,  485,  567  et  seq. 


504  (3d  ed.)     Pt.  III.     THE  LAW  OF  PRIOR  APPROPRIATION.         §  478 

"When  the  appropriator  is  no  longer  using  the  water  either  for 
the  season  or  any  specific  time,  his  right  to  cut  off  or  interfere  with 
the  flow  of  the  stream  for  the  time  being  lapses."  14  In  one  case  15 
it  is  held  that  the  appropriation  "must  also  be  limited  in  its  ap- 
plication to  the  acreage  of  land  upon  which  previously  applied, 
except  at  such  times  as  the  water  or  some  part  thereof  may  not  be 
needed  by  others  $  and  the  owner  not  requiring  its  use  should  not 
be  permitted  to  complain  of  its  application  to  a  beneficial  use  by 
others  interested.  In  other  words,  at  all  times  that  the  water  is 
not  required  by  one  or  more,  it  must  be  at  the  disposal  o|  others 
in  the  order  of  their  relative  rights  thereto. " 16  In  an  oft-cited 
opinion  by  Judge  Hawley  it  is  said:  "In  the  appropriation  of 
water,  there  cannot  be  any  'dog  in  the  manger'  business  by  either 
party,  to  interfere  with  the  rights  of 'Others,  when  no  beneficial  use 
of  the  water  is  or  can  be  made  by  the  party  causing  such  interfer- 
ence."17 The  same  case  holds  that  waste  in  the  use  of  water  is 
not  permissible.  To  secure  protection  in  the  diversion  and  use  of 
the  waters  of  a  stream  for  irrigation,  or  any  other  purpose,  there 
must  be  an  economic,  beneficial  and  reasonable  use  thereof,  so  as 
to  prevent  waste.  An  excessive  diversion  of  water  for  any  purpose 
cannot  be  regarded  as  a  diversion  for  a  beneficial  use. 

Water  codes  usually  contain  the  provision  "beneficial  use  shall 
be  the  basis,  the  measure  and  the  limit  of  the  right. ' ' 18  And 
statutes  generally  enact  the  same  rule  in  other  forms.19 

Beneficial  use  is  coming  to  be  called  "conservation"  of  the 
water.20 

14  Hutchinson  v.  Watson  D.  Co.,  16          18  For  example,  Nev.  Stats.  1903,  p. 
Idaho,  484,  133  Am.  St.  Rep.  125,  101  24,  sec.  1,  1907,  p.  30;   N.  M.  Stats. 
Pac.     1059,     holding     that     an     ap-  1907,  c.  49,  p.  71,  sec.  2 ;  N.  D.  Stats. 
propriator  must  leave  the  water  in  its  1905,  e.  34,  sec.  2;  Rev.  Codes  (1905), 
natural  channel  except  at  such  times  sec.   7604  et  seq. ;    S.  D.   Stats.   1905, 
as  he  is  actually  using  it.     See,  also,  p.  201,  sec.  2 ;  Utah  Comp.  Laws,  1907, 
Williams   v.    Altnow,   51   Or.   275,   95  see.    1288x20.     In    the    National  Irri- 
Pac.    200,    97    Pac.    539;    Whited    v.  gation  Act,  the  law  of  appropriation 
Cavin  (Or.  1909),  105  Pac.  396.  is  recognized,  "Provided  that  the  right 

15  Hough  v.  Porter,  51  Or.  318,  95  to    the   use   of   water   acquired   under 
Pac.  732,  98  Pac.  1083,  102  Pac.  728.  the  provisions  of  this  act  shall  be  ap- 

16  Citing   Mann   v.   Parker,   48    Or.  purtenant   to  the  land  irrigated,   and 
321,  86  Pac.  598;  Gardner  v.  Wright,  beneficial  use  shall  be  the  basis,  the 
49  Or.  609,  637,  91  Pac.  286;  Williams  measure  and  the  limit  of  the  right." 
v.  Altnow,  51  Or.  275,  95  Pac.  200,  97  19  See  note  11,  supra. 

Pac.  539.  20  Cases  cited  supra,  sec.  137. 

17  Union  Mining  Co.  v.  Dangberg, 
81  Fed.  73. 


§479  Ch.21.     QUANTITY   OF  WATER.  (3d  ed.)  505 

(3d  ed.) 

§  479.  Same — Even  if  Less  Than  Capacity  of  Ditch. — Bene- 
ficial use  controls  to-day,  even  if  less  than  capacity  of  ditch.21 
"The  right  of  a  party  in  appropriating  water  is  limited  to  the 
amount  he  actually  uses  for  a  beneficial  purpose,  not  exceeding  the 
carrying  capacity  of  his  ditch  or  canal."22 

In  a  California  case  ^  the  court  said,  per  Mr.  Justice  Van  Fleet 
(now  justice  of  the  United  States  district  court)  :  "An  appro- 
priation of  water  by  the  owner  of  lands  by  means  of  a  ditch  is 
not  measured  by  the  capacity  of  the  ditch  through  which  the  ap- 
propriation is  made,  but  is  limited  to  such  quantity,  not  exceeding 
the  capacity  of  the  ditch,  as  the  appropriator  may  put  to  a  useful 
purpose."24  In  a  Colorado  case25  it  is  said:  "In  order  to  consti- 
tute an  appropriation  of  water  there  must  not  only  be  a  diversion 
of  the  water  from  the  stream  and  a  carrying  of  it  to  the  place  of 
use,  but  it  must  be  beneficially  applied,  and  the  measure  of  the 
appropriation  does  not  depend  alone  upon  the  amount  diverted 
and  carried,  but  the  amount  which  is  applied  to  a  beneficial  use 
must  also  be  considered.  For  instance,  in  the  case  of  New  Mercer 
Ditch  Co.  v.  Armstrong,1  it  was  determined  by  the  decree  that  the 
ditch  had  a  carrying  capacity  of  about  thirty-three  cubic  feet  of 
water  per  second  of  time.  It  was  constructed  to  irrigate  one  hun- 
dred and  twenty  acres  of  land,  and  it  was  determined  that  the 
appropriator  was  entitled  to  only  so  much  water  as  he  could  bene- 
ficially apply  upon  that  land."2 

21  Riverside  etc.  v.  Sargent,  112  Gal.  24  "Not  by  the  amount  which  he  took, 
230,  44  Pac.  560;   Smith  v.  Hawkins,  not  by  the  amount  which  he  claimed, 
120   Cal.   86,   52   Pac.    139,    19    Morr.  not,  as  the  court  decrees,  by  an  amount 
Min.  Rep.  243;  Bledsoe  v.  Decrow,  132  sufficient  thoroughly  and   properly  to 
Cal.  312,  64  Pac.  397;  Walker  v.  Lill-  irrigate   a   thousand    acres    of   land/' 
ingston,    137   Cal.   401,   70   Pac.   282 ;  Leavitt  v.  Lassen  Irr.  Co.,  157  Cal.  82, 
Barnes  v.  Sabron,  10  Nev.  217,  4  Morr.  106  Pac.  404  (citing  Senior  v.  Ander- 
Min.  Rep.  673;   Bowman  v.  Bowman,  son,  115  Cal.  496,  47  Pac.  454;  Smith 
35  Or.  279,  57  Pac.  546;  Millheiser  v.  v.  Hawkins,  120  Cal.  86,  52  Pac.  139, 
Long,    10    N.    M.    99,    61    Pac.    Ill;  19    Morr.    Min.    Rep.    243;    Strong   v. 
Stenger  v.  Tharp,  17  S.  D.  13,  94  N.  Baldwin,  137  Cal.  440,'  70  Pac.  288). 
W.    402;    Smith    v.    Duff    (1909),    39  In  Whited  v.  Gavin  (Or.),  105  Pac.  396, 
Mont.  382,  133  Am.  St.  Rep.  587,  102  this  is  said  to  be  "almost  axiomatic." 
Pac.  984;   Leavitt  v.  Lassen  Irr.   Co.  In  Salt  Lake  City  v.  Gardner  (Utah), 
(1909),   157   Cal.    82-,   106   Pac.   404;  114    Pac.    147,    "elementary    and    no 
Whited  v.  Gavin  (Or.  1909),  105  Pac.  longer  questioned  by  anybody." 

396;  Ison  v.  Sturgill  (Or.  1910),  109  25  Woods  v.  Sargent,  43  Colo.  268, 

Pac.  579.  95  Pac.  932. 

22  Stenger  v.   Tharp,   17   S.   D.   13, 

94  N.  W.  402.  1;  21  Col°-  357>  40  Pac-  989- 

23  Smith  v.  Hawkins,  120  Cal.  86,  at  2  See, Union   Mining  Co.  v.   Dang- 
88,  52  Pac.  139,  19  Morr.  Min.  Rep.      berg,  81  Fed.  73. 

243. 


506  (3d  ed.)     Pt.  III.     THE  LAW  OF  PRIOR  APPROPRIATION.         §  480 

Beneficial  use  by  and  needs  of  the  appropriator,  and  not  the 
quantity  originally  diverted  or  the  capacity  of  the  ditches  con- 
structed, determines  the  limit  of  the  appropriator 's  rights.  Even 
where  a  large  ditch  capacity  was  originally  actually  needed  and 
used,  lands  after  years  of  irrigation  do  not  require  the  amount 
first  essential,  because  the  law  of  nature,  added  to  improved 
methods,  greatly  reduces,  in  the  course  of  time,  the  quantity  re- 
quired.3 

It  is  sometimes  so  provided  by  statute.4 

(3d  ed.) 

§  480.  Time  at  Which  Beneficial  Use  is  to  be  Figured.— The 
tendency  of  decisions  to-day  is  to  figure  beneficial  use  solely  at  the 
very  time  when  any  controversy  arises.  But,  as  elsewhere  consid- 
ered, the  spirit  of  the  law  has  always  been  to  allow  a  reasonable 
time ; 5  and  moreover  the  statutes  specifying  a  definite  number  of 
years  for  forfeiture  of  right  for  nonuse  6  must  be  given  some  force. 
Taking  the  law  as  a  whole,  it  is  a  fair  deduction  that  beneficial  use 
is  to  be  measured  a  reasonable  time  (not  exceeding  the  statutory 
period,  if  any,  for  forfeiture  by  nonuse)  prior  to  the  time  the  con- 
troversy arises ;  the  question  what  is  a  reasonable  time  being  one  of 
fact  in  each  case. 

(3d  ed.) 

§  481.  What  Constitutes  Waste. — The  following  is  a  collection 
of  various  more  or  less  specific,  although  disconnected,  examples 
of  rulings  upon  what  does  and  does  not  constitute  beneficial  use. 
No  further  attempt  is  made  to  classify  them,  partly  because  no  fixed 
classification  exists,7  the  point  being  one  now  in  the  course  of  rapid 
development,  but  chiefly  because  the  question  is  one  of  fact,  a 
very  general  one,  to  be  left  broadly  to  faie  jury  (or  to  the  court,  if 
sitting  without  one),  and  the  result  in  any  particular  case  will 
depend  upon  the  attitude  which  the  jury  (or  judge),  as  reasonable 

3  Hough  v.  Porter,  51  Or.  318,  95  the  ditch,"  etc.     (Stats.  1907,  p.  138, 
Pac.  732,  98Pac.  1083,  at  1101,  1102,  sec.  12;  Rev.  Stats.  895.)     Copied  in 
102  Pac.  728,  citing  United  States  v.  Utah  Stats.  1911,  c.  104,  p.  145,  see. 
Conrad  Inv.  Co.  (C.  C.  Or.),  166  Fed.  13.     See  'Montana     Stats.     1907,     p. 
.123,  130.  484. 

4  In  Wyoming:  "Rights  to  the  use          5  Supra,  sec.  378,  diligence;   infra, 
of  water  shall  be  limited  and  restricted  sec.  483,  future  needs;  infra,  sec.  567 
to  so  much  thereof  as  may  be  neces-  et  seq.,  abandonment. 

sarily    used    for    irrigation    or    other  6  Infra,  sec.  576. 

beneficial    purposes    as    aforesaid,    ir-  7  See  Cascade  Co.  v.  Empire  etc.  Co. 

respective  of  the  carrying  capacity  of       (Colo.),  181  Fed.  1011. 


§481  Ch.21.     QUANTITY  OF  WATER.  (3ded.)  507 

men,  will  take  toward  the  evidence  as  a  whole,  when  presented  to 
them  at  the  trial. 

Reference  should  also  be  made  to  preceding  sections  in  another 
chapter  considering  what  constitutes  a  beneficial  purpose.8 

The  amount  necessary  for  beneficial  use  is  a  question  of  fact  in 
each  case.9  It  is  not  to  be  determined  by  rule  or  presumption,  but 
by  the  evidence  each  case  presents  to  the  court  or  jury.10  Evidence 
will  be  received  of  the  number  of  acres  irrigated  and  the  needs 
per  acre,11  and  of  the  custom  of  the  locality.12  The  testimony  of 
farmers  living  in  the  vicinity  regarding  the  quantity  of  water  re- 
quired for  the  irrigation  of  crops  and  regarding  the  capacity  of  a 
flume  may  outweigh  the  testimony  of  professional  engineers.13  In 
Oregon  it  has  been  recently  held  u  that  where  one  is  entitled  to  the 
use  of  water  from  a  stream,  and  has  between  sixty  and  seventy 
acres  of  land  in  cultivation,  including  an  orchard,  it  will  be  as- 
sumed that  a  flow  of  sixty  inches  of  water  is  ample  for  his  irriga- 
tion and  domestic  requirements;  thereby,  without  statute,  reaching 
by  presumption  substantially  the  same  rule  as  the  maximum  limit 
fixed  by  the  water  codes.15 

Beneficial  use  necessarily  varies  with  the  humidity  of  seasons.18 

An  appropriator  of  water  from  a  stream  for  irrigating  purposes 
is  not  confined  to  the  amount  of  water  he  used,  or  to  the  amount 
of  land  he  irrigated  during  certain  dry  seasons  when  there  was  not 
sufficient  water  to  irrigate  all  his  land  or  as  much  as  he  had  previ- 
ously irrigated.17  "Dry  season"  is  that  season,  regardless  of  the 
time  of  the  year,  when  irrigation  is  necessary  for  preservation  of 
crops.18  This  season  when  irrigation  can  be  beneficially  applied  is 
also  called  the  ' '  irrigating  season. "  19 '  There  is  but  one  ' '  irrigating 

8  Supra,  sec.  378  et  seq.  i«  Gotelli  v.  Cardelli,  26  Nev.  382. 

»  X.  Y.  etc.  Co.  v.  Buffalo  etc.  Co.,  69  Pac.  8. 

25  Colo.  529,  55  Pac.  720.  17  Eodgers   v.   Pitt,    129   Fed.    932, 

10  In    Schodde    v.    Twin    Falls    Co.  saying:    "During  the  dry  years  there 
(Idaho),  161  Fed.  43,  88  C.  C.  A.  207,  was  not  sufficient  water  to  furnish  the 
a  current-wheel  is  held  per  se  a  waste-  necessary  supj>ly.     Complainant  could 
ful   method   of   use.     But   as   to   this  not  obtain  sufficient  water  to  irrigate 
case,  see  supra,  sec.  310.  the   land.     The   complainant  certainly 

11  Bark   v.   Bartholomew,    2    Idaho,  ought  not  to  be  confined  to  the  amount 
1087,  29  Pac.  40,  3  Idaho,  367,  29  Pac.  of  water  he  used,  and  to  the  number 
40.  of    acres    irrigated    during    the    dry 

12  Eodgers  v.  Pitt,  89  Fed.  420.  seasons." 

13  Twaddle  v.  Winters,  29  Nev.  88,  18  Daly   v.   Euddell,    137    Cal.    671, 
85  Pac.  280,  89  Pac.  289.       •  676,  70  Pac.  784. 

14  Gardner  v.  Wright,  49  Or.  609,  91  i»  See  Twaddle  v.  Winters,  29  Nev. 
Pac.  286.  88,  85  Pac.  280,  89  Pac.  289;  Ander- 

15  Infra,  sec.  487.  son  v.  Bassman,  140  Fed.  14. 


508    (3ded.)    Pt.  III.     THE  LAW  OF  PRICE  APPROPRIATION.,         §481 

season"  each  year,  and  in  Idaho  is  by  law  defined  as  extending 
from  April  to  November ;  20  in  one  Oregon  locality,  April  to  July ;  21 
in  New  Mexico,  March  31st  to  October  15th.22  During  such  season, 
however,  as  the  amount  is  limited  by  beneficial  use,  a  decree  which, 
in  effect,  allows  respondents  all  the  water  their  ditch  will  carry 
during  the  irrigating  season  of  each  year,  irrespective  of  its  neces- 
sity, and  which  enjoins  others  from  interfering  therewith,  is 
erroneous.23  Injunction  should,  it  seems,  contain  a  qualification, 
"while  the  full  capacity  is  being  put  to  beneficial  use."  The  same 
result  has  been  reached  by  holding  that,  though  the  words  of  the 
injunction  referred  only  to  capacity  of  ditch,  yet  beneficial  use  will 
be  implied  as  the  basis  of  the  decree,-  though  not  mentioned.24  At 
all  times  that  the  water  is  not  required  by  one,  it  should  be  at  the 
disposal  of  others.25 

The  mere  fact  that  an  increase  is  made  in  the  number  of  acres 
irrigated,1  or  in  the  capacity  of  a  mill  run  with  water,2  does  not 
show  the  use  of  more  water,  since  compatible  with  a  more  efficient, 
use  of  the  same  amount  of  water.  The  mere  fact  of  a  sale  of  part 
of  water-right  does  not  per  se  show  that  beneficial  use  is  not  being 
made.3  But  where  there  is  evidence  of  an  unused  quantity  of 
water,  which  is  taken  by  a  subsequent  claimant,  the  former  cannot 
claim  the  right  to  sell  to  and  charge  the  latter  for  the  use  of  such 
amount  as  he  himself  does  not  utilize,  since  he  has  no  right  to  it.4 

One  using  only  an  insignificant  quantity  of  water  for  watering 
a  garden  patch  cannot  later  claim  that  he  has  a  right  to  enough 
water  to  irrigate  a  farm.5  If  one  builds  a  dam,  spreading  out  the 
water  for  cattle  to  wallow  in,  so  that  much  is  lost  by  evaporation, 

20  Twin  Falls  Co.  v.  Lind,  14  Idaho,  etc.  Co.  v.  Meadow  etc.  Co.,  35  Colo. 
348,  94  Pac.  164.  588,   86   Pac.   748;    Cache  La  Poudre 

21  Hough  v.  Porter,  51  Or.  318,  95  etc.  Co.  v.  Larimer  etc.  Co.,  25  Colo. 
Pac.  732,  98  Pac.  1083,  102. Pac.  728.  144,  71  Am.  St.  Rep.  123,  53  Pac.  318. 

22  N.  M.  Stats.  1907,  p.  71,  sec.  5.  2  Union   etc.   Co.   v.   Dangberg,    81 

23  Gotelli  v.   Cardelli,  26  Nev.  382,  Fed.  73. 

69   Pac.   8;    Twaddle   v.   Winters,    29  3  Calkins   v.    Sorosis    etc.    Co.,    150 

Nev.  88,  85  Pac.  283,  89  Pac.  289.  Cal.  426,  88  Pac.  1094;  Drake  v.  Ear- 

24  Medano    etc.    Co.    v.   Adams,    29  hart,  2  Idaho,  716,  23  Pac.  541.     But 
Colo.  317,  68  Pac.  431.  cf.  Johnston  v.  Little  Horse  etc.  Co., 

25  Mann  v.  Parker,  48  Or.  321,  86  13  Wyo.  208,  110  Am.  St.  Rep.  986,  79 
Pac.  598;  Gardiner  v.  Wright,  49  Or.  Pac.  22,  70  L.  R.  A.  341. 

609,  91  Pac.  286;  Hough  v.  Porter,  51  *  Mann  v.  Parker,  48  Or.   321,   86 

Or.  318,  95  Pac.  732,   98  Pac.   1083,  Pac.  598. 

102  Pac.  728;  Whited  v.  Gavin  (Or.),  5  San  Luis  etc.  Co.  v.  Estrada,  117 

105  Pac.   396.  Cal.  168,'  48  Pac.  1075 ;  Head  v.  Hale, 

i  Platte   etc.    Co.   v.   Central   Trust  38  Mont.  302,  100  Pac.  222. 
Co.,  32  Colo.  102,  75  Pac.  391;  Fulton 


§  481  Ch.  21.     QUANTITY  OF  WATER,  (3d  ed.)  509 

an  injunction  will  be  granted.6  An  appropriates  having  as  much 
as  he  needs  cannot,  by  buying  up  riparian  land,  get  (against  other 
riparian  proprietors)  an  additional  amount,  having  no  need  for  it.7 
The  appropriator  is  not  required  to  furrow  his  land  before  irrigat- 
ing the  same.8 

The  practice  of  rotation  is  becoming  more  frequent,  by  which 
several  appropriators  pool  their  rights  and  use  the  whole  for  periods 
of  time,  and  this  often  accomplishes  a  more  economical  use  of 
water.  In  one  case  it  is  said :  9  ' '  Rotation  in  irrigation  undoubt- 
edly tends  to  conserve  the  waters  of  the  State,  and  to  increase  and 
enlarge  their  duty  and  service,  and  is,  consequently,  a  practice  that 
deserves  encouragement  in  so  far  as  it  may  be  done  within  legal 
bounds."  It  is  now  provided  by  statute  in  Wyoming  that  "to 
bring  about  a  more  economical  use  of  the  available  water  supply,  it 
shall  be  lawful  for  water  users  owning  lands  to  which  are  attached 
water-rights,  to  rotate  in  the  use  of  the  supply  to  which  they  may 
be  collectively  entitled;  or  a  single  water  user,  having  lands,  to 
which  water-rights  of  a  different  priority  attach,  may  in  like  man- 
ner rotate  in  use,  when  such  rotation  can  be  made  without  injury 
to  lands  enjoying  an  earlier  priority."  10 

Beneficial  use  is  not  what  is  actually  consumed  but  what  is 
actually  necessary  in  good  faith.11  An  appropriation,  both  in  time 
and  volume,  is  to  be  determined  from  width,  depth,  length  and 
grade  of  ditch,  number  of  acres  irrigated  therefrom,  and  the  extent 
of  actual  use.12  "In  determining  the  amount  of  water  appro- 
priated for  useful  or  beneficial  purposes  the  number  of  acres 
claimed  or  owned  by  each  party  and  the  amount  of  water  necessary 
to  the  proper  irrigation  of  the  same  should  be  taken  into  considera- 
tion. "  13  In  determining  the  amount  of  water  which  a  user  applies 
to  a  beneficial  use,  and  to  which  he  is  entitled  as  against  a  subse- 
quent appropriator,  the  system  of  irrigation  in  common  use  in  the 
locality,  if  reasonable  and  proper  under  existing  conditions,  is  to  be 
taken  as  the  standard,  although  a  more  economical  method  might  be 

6  Ferrea  v.  Knipe,  28  Cal.  340,  87  10  Session  Laws  1909,  c.  108. 

Am.  Dec.  128.  n  Farmers'  etc.  Co.  v.  Riverside  Trr. 

7  Senior  v.  Anderson,  130  Cal.  290,       Dist.   (1909),  16  Idaho,  525,  102  Pac. 
62  Pac.  563;   S.  C.,  138  Cal.  716,  72       481. 

Pac.  349.  12  Bates  v.  Hall,  44  Colo.  360,  98 

8  Nephi  Irr.  Co.  v.  Vickers,  29  Utah,      Pac.  3. 

315,  81  Pae.  144.  ™  Kirk   v.   Bartholomew,   2    Idaho, 

»  Helphrey  v.  Perrault,  12  Idaho,  1087,  29  Pae.  40,  3  Idaho,  367,  29 
451,  86  Pac.  417.  Pac.  40. 


510   (3d  ed.)    Pt.  III.     THE  LAW  OF  PRIOR  APPROPRIATION.          §  482 

adopted.14     Advance    in    methods    of    irrigation,  and    increase  in 
number  of  users,  must  be  considered  in  deciding  the  requirement 
for  beneficial  use,  and  thereby  the  extent  of  the  appropriation.15 
Recent  statutes  frequently  make  waste  criminal. 

(3d  ed.) 

§  482.  Same. — Merely  that  in  the  earlier  history  of  the  vicin- 
ity large  quantities  were  diverted  and  actually  applied  notwith- 
standing the  ditches  first  constructed  had  sufficient  capacity  to 
carry  such  supply,  does  not  necessarily  show  that  such  amount  was 
really  needed.  Beneficial  use  is  measured  by  conditions  at  time  of 
suit.  Improved  methods  may  limit  the  amount  below  that  origin- 
ally used.  In  Hough  v.  Porter  16  Mr.  Justice  King  says :  ' '  Owing 
to  the  little  demand  and  large  proportionate  supply  in  use  by  those 
along  Silver  creek  and  its  branches  in  the  early  eighties,  together 
with  the  lack  of  general  knowledge  and  experience  on  the  subject 
throughout  the  state,  wasteful  methods  at  that  time  were,  no  doubt, 
common ;  but  of  recent  years  improved  means  throughout  the  West 
have  come  into  use,  and  a  scarcity  of  the  supply  has  made  a  more 
economic  use  necessary.  The  result  is  that  the  law  has  become  well 
settled  that  beneficial  use  and  needs  of  the  appropriator,  and  not 
the  capacity  of  the  ditches  or  quantity  first  applied,  is  the  measure 
and  limit  of  the  right  of  such  appropriators.17  ....  The  farmer 
at  first  may  have  needed  but  one  hundred  inches  of  water  and 
yet  constructed  ditches  carrying  three  times  that  quantity,  using  it 
in  a  wasteful  manner,  which  right  he  still  insists  upon  by 
reason  of  the  ditch,  when  first  constructed,  being  of  sufficient 
capacity  to  carry  the  excessive  supply.  It  is  well  settled  that  such 
a  claim  cannot  be  successfully  maintained."18  In  another  Oregon 
case  19  it  is  said :  ' '  He  also  says  that  during  the  time  he  owned  the 

H  Rodgers   v.   Pitt,    129   Fed.    932,  15  Hough  v.  Porter,  51  Or.  318,  95 

saying:   "The  court  cannot,  in  the  ab-      Pac.  732,  98  Pac.  1083,  102  Pac.  728. 
sence   of   any   law   upon   the   subject,  ™  51  Or   318    95  Pac.  732,  98  Pae. 

compel  the  farmers  to  use  any  partie-  „'«!*•       f^:    v    i     01     j 

,,.,.,..  17  Citing  this  book,  2d  ed.,  p.  263; 

ular  system,  but  it  might,  in  a  case       geaweard  *   pacific  L;  Co ^  49'  &  157; 

where    an    extravagant    and    wasteful  88   pac>   953.   Gardner  v.  Wright,  49 

system  is  used,  which  demands  more  Or.    609,    91    Pac.    286;    Union    Mill, 

water   than    they    are    entitled   to    by  M.  Co.  v.  Dangberg   (C.  C.),  81  Fed. 

virtue  of  their  appropriations,  declare  73,  119;  Anderson  v.  Bassman  (C.  C.), 

that    under    such    circumstances    they  140  Fed.  26. 

were  not  entitled  to   the  quantity  of  ^^.ftTff  &?ft  ^  °°" 

water  they  were  using,  and  give  the  19  Davig  'v.  Chamberlain,  51  Or.  304, 

excess  to  subsequent  appropriators."  93  pac   154. 


§  482  Ch.  21.     QUANTITY  OF  WATER.  (3d  ed.)  511 

Davenport  ditch  he  used  it  in  mining  during  the  .winter  months  and 
up  to  the  1st  of  June  —  up  to  the  irrigating  season.  'That  is  the 
way  we  used  it.'  Hence  there  does  not  exist  in  the  owners  of 
either  the  Farmers'  ditch  or  the  Davenport  ditch  any  right  to 
divert  water  thereby  after  the  1st  of  June.  An  appropriation  of 
water  is  limited  in  every  case  in  quantity  as  well  as  for  the  period 
of  time  for  which  the  appropriation  is  made.  '  '  20 

The  Land  Office  has  ruled  that  the  final  and  only  conclusive  proof 
of  reclamation  under  the  Reclamation  Act  is  production.21 

In  an  Idaho  case  the  facts  were  held  to  show  beneficial  use  by  a 
party  for  irrigation  at  some  times  and  for  mining  at  the  remaining 
times.22  In  another  Idaho  case  w  defendants  had,  during  the  irriga- 
tion season,  diverted  and  used  the  waters  of  Snake  River  since  the 
year  1885.  After  the  irrigation  season,  and  about  the  15th  of  Octo- 
ber, 1907,  the  defendants,  having  no  use  for  the  water  until 
the  next  season,  nevertheless  shut  down  their  headgate  at  the 
head  of  the  slough,  and  also  placed  therein  a  dam  of  earth  and  rock 
so  as  to  prevent  the  water  from  flowing  down  the  channel  through 
Watson  slough,  and  diverted  and  deflected  the  whole  body  of  the 
stream  into  the  mam  channel  of  Snake  River,  and  thereby  cut  off 
from  plaintiff  the  flow  of  water  in  Watson  slough.  This  time  when 
the  water  is  not  in  use  by  the  defendant  was  held  not  covered  by 
its  appropriation,  and  during  such  times  it  is  as  though  there  were 
no  appropriation  at  all,  and  the  waters  are  the  same  as  if  unappro- 
priated, and  the  diverter  is  a  stranger,  intermeddler  or  interloper 
with  respect  to  the  watercourse.  As  to  plaintiff,  he,  subsequent  to 
defendant's  appropriation,  took  up,  about  1891,  riparian  land 
through  which  the  slough  runs  and  he  has  for  more  than  seventeen 
years  last  past  been  using  the  waters  naturally  flowing  in  the 
stream  and  watercourse  for  domestic  purposes  and  for  watering 
his  livestock,  and  claims  that  as  a  riparian  owner  he  is  entitled  to 
the  continued  use  thereof  and  to  have  the  water  flow  through  his 
lands  in  its  natural  course  when  not  used  for  irrigation  or  other 
purposes  by  prior  appropriators  in  conformity  with  law.  He  was 
upheld  in  this  claim. 

20  Citing    Simmons   v.   Winters,   21  21  37  Land  Dec.  468. 
Or.  35,  28  Am.  St.  Rep.  727,  27  Pac. 

7;   McPhee  v.  Kelsey,  44  Or.  193,  74  22  Lockwood  v.  Freeman,  15  Idaho, 

Pac.  401,  75  Pac.  713;  Barnes  v.  Sa-  395,  98  Pac.  295. 


,  »  H.tthta»    v.    Wa.son    D.    Co. 

507,  514,  22  L.  Ed.  414,  1  Morr.  Min.       (1909),   16   Idaho,   484,   133   Am.   St. 
Rep.  583.  Rep.  125,  101  Pac.  1059. 


512  (3d  ed.)    Pt.  III.     THE  LAW  OF  PRIOR  APPEOPEIATION.          §  483 

C.     ANNUAL  INCREASE  OF  USE. 
(3d  edj 
§  483.    Future  Needs. — In  considering  the  amount  of  water  to 

which  an  appropriator  is  entitled,  there  is  introduced  a  new  feature 
to  meet  the  requirements  of  irrigation.  The  history  and  principles 
so  far  stated  show  that  the  system  of  appropriation  aims  funda- 
mentally at  definiteness  and  certainty.  It  allowed  the  prior  appro- 
priator to  take  what  he  wanted  and  do  with  it  what  he  wanted,  if 
he  let  the  world  know,  so  that  later  comers  would  have  to  take 
things  as  they  found  them,  and  would  know  what  they  could  take. 
Consequently,  as  regards  the  limitation  to  beneficial  use,  later 
appropriators  had  to  look  solely  at  the  amount  the  prior  appro- 
priator was  actually  applying  to  a  beneficial  purpose  at  the  time 
the  subsequent  claimant  arrived.  For  any  enlargement  of  amount 
used  thereafter  the  prior  claimant  had  to  take  his  chances  with 
others  at  the  time  he  sought  to  increase  the  amount.24 

But  while  in  mining  a  fixed  amount  may  usually  be  sufficient 
from  the  start  for  all  purposes,  in  irrigation  of  newly  settled  land 
it  will  not.  The  need  for  water  grows  as  the  area  cultivated  grows. 
The  settler  can  cultivate,  perhaps,  only  a  few  acres  the  first  year; 
but  he  does  everything  with  a  view  to  later  expansion.  As  is  said 
in  one  case,  it  is  reasonable  to  suppose  that  reclamation  of  the 
entire  area  owned  at  the  time  of  diversion  is  contemplated.25  Be- 
fore his  larger  acreage  is  cleared  and  planted,  however  (which  may 
take  several  years),  other  claimants  to  the  use  of  the  water  have 
arrived.  Does  the  law  allow  the  former  to  continue  increasing  his 
use  in  the  face  of  these  later  claimants? 

It  seems  well  settled  that  such  is  the  rule.  The  amount  used  need 
not  be  a  fixed,  constant  quantity.  The  amount  used  is  still  a  limit, 
as  previously  set  forth.  But  it  is  a  movable  limit,  which  may 
gradually  increase  as  the  irrigator's  needs  increase.  The  principle 
ha"s  been  repeatedly  affirmed.1  In  California  this  principle  was 

24  Compare    Windsor    Res.    Co.    v.  Idaho:  Hall  v.  Blackman,  8  Idaho, 
Lake  Supply  Co.,  44  Colo.  214,  98  Pac.  272,  68  Pae.   19;   Conant  v.  Jones,  3 
729.  Idaho,    606,   32   Pac.    250;    Brown   v. 

25  Seaweard.  v.  Pacific  etc.  Co.,  49  Newell,  12  Idaho,  166,  85  Pac.  385. 

°ri  CoLal.Ps1e  Tew    Mercer    etc.       ^^^jJ^^^'r^^ 

f~<  01    /-i  i       OCT     *n       14   Mont.   484.   43   Am.   St.   Rep.   6o2. 

S°'  VQ8^rnfnr°^g'  2l  tCOl°i  357'Pt?  37  Pac.  5;  Arnold  r.  Passavant,  19 
Pac.  989.  (Dictum  but  enlargement  ' 

not    upheld    on    facts.)     Just    as    in    • 

California,  there  seems  to  be  no  actual  Nevada:  Barnes  v.  Sabron,  10  Nev. 

decision  in  Colorado  to  this  effect.  217,  4  Morr.  Min.  Rep.  673;  Rodgera 


§  484  Ch.  21.     QUANTITY  OF  WATEB.  (3d  ed.)  513 

affirmed  in  Senior  v.  Anderson ; 2  though  the  enlargement  was  not 
upheld  on  the  facts  of  the  case.  There  seems  no  other  California 
decision  on  the  point,  the  court  relying,  on  Oregon  cases.3  In  a 
later  case  the  California  court  said:  "There  are  cases  which  hold 
that  the  diversion  of  a  large  quantity  of  water  is  a  good  appropria- 
tion of  the  whole  ab  initio,  although  it  is  not  all  used  at  first,  if  the 
design  is  gradually  to  extend  the  use,'  and  that  design  is  carried  out 
before  an  adverse  appropriation  of  the  surplus  below  the  point 
where  it  is  returned  to  the  stream.  But  this  is  a  point  which  has 
not  been  argued,  and  we  merely  allude  to  it  in  passing."4  The 
essential  point  of  the  rule  is  not  correctly  stated  in  this  passage, 
since  the  essence  of  the  rule  is  that  the  design  may  be  carried  out 
in  spite  of  an  intervening  appropriation  elsewhere  on  the  stream,  as 
the  quotations  below  show. 

The  same  doctrine  has  been  applied  to  future  enlargement  of  use 
for  power  purposes  as  well  as  irrigation.5 

(3d  ed.) 

§  484.  Same. — There  are  limitations  upon  this  principle  of 
figuring  future  needs  in  the  amount  appropriated  though  not  at 
present  used.  These  limitations  are  but  applications  of  the  rules 
heretofore  stated  for  determination  of  the  amount  to  which  an 
appropriator  is  entitled,  which  apply  to  future  use  as  much  as  to 
present  use. 

First,  the  future  needed  amount  must  be  originally  claimed  at 
the  time  of  initiating  the  appropriation;  being  the  limitation 

v.  Pitt,  129  Fed.  932;   Union  Mining  "present    right."     It    was    held    that 

Co.  v.  Dangberg,  81  Fed.  73.  water   for   future   needs    was   not   re- 

Oregon:  Nevada  D.  Co.  v.  Bennett,  served  under  "present  right."     South- 

30   Or.   59,   60  Am.   St.  Eep.   777,  45  side  etc.  Co.  v.  Burson,  147  Cal.  401, 

Pac.  472;   Glaze  v.  Frost,  44  Or.  29,  81  Pac.  1107.     Compare  Duckworth  v. 

74  Pac.  336;   Seaweard  v.  Pacific  etc.  Watsonville  Co.,  158  Cal.  206,  110  Pac. 

Co.,  49  Or.  157,  88  Pac.  963;   Ison  v.  927,  holding  an  appropriation  for  town 

Sturgill  (Or.),  .109  Pac.  579  (dictum}.  supply     cannot     be     increased     with 

Utah:  Elliot  v.  Whitmore,  23  Utah,  growth  of  the  town,  or  for  emergency 

342,  90  Am.  St.  Kep.  7Cf»,  65  Pac.  70;  use,  against  other  appropriators.     See, 

Sowards  v.  Meagher  (Utah),  108  Pac.  also,   Cox  v.  Clough,  70   Cal.   349,   11 

1113.  Pac.  732. 

Washington :  Longmire  v.  Smith,  26  4  Hubbs   and   Miners'  Ditch  Co.   T. 

Wash.  439,  67  Pac.  246,  58  L.  R.  A.  Pioneer  Water  Co.,   148   Cal.  407,   83 

308.     See,     also,     Avery    v.     Johnson  Pac.  253. 

(Wash.),   109  Pac.   1028.  5  Trade   Dollar   etc.   Co.   v.   Fraser 

2  115  Cal.  496,  47  Pac.  454.  (Idaho),  148  Fed.  587,  79  C.  C.  A.  37; 

3  Compare    the    following:   An    ap-  Union  Min.  Co.  v.  Dangberg,  81  Fed. 
propriator  using  twenty-five  inches  en-  73;   McFarland  v.  Alaska  etc.  Co.,  3 
tered    into    a    contract    reserving    his  Alaska,  308. 

Water  Rights — 33 


514  (3d  ed.)    Pt.  in.     THE  LAW  OF  PRIOR  APPROPRIATION.          §  484 

already  stated,  to  the  original  claim.  The  future  needs  must  have 
been  in  mind  and  claimed  at  the  time  the  appropriation  was 
originally  made,  and  not  a  mere  afterthought.6  That  is,  the  en- 
larged use  must  be  part  of  an  original  policy  of  expansion.  Other- 
wise, it  cannot  prevail  over  interveners.7  Water  for  future  needs 
must  have  been  part  of  the  original  appropriation,  and  if  a  decree 
settling  rights  is  made,  such  right,  if  not  included  therein,  cannot 
be  claimed  thereafter.8  Use  on  after-acquired  land  must  have  been 
contemplated  at  the  time  of  the  original  appropriation.9 

Second,  the  future  enlargement  cannot  exceed  the  original 
capacity  of  the  ditch.10  Aiaeng  the  settled  propositions  of  the  law 
of  appropriation,  Judge  Hawley11  includes  the  following:  "That 
if  the  water  is  used  for  the  purpose  of  irrigating  lands  owned  by 
the  appropriator,  the  right  is  not  confined  to  the  amount  of  water 
used  at  the  time  the  appropriation  is  made;  that  the  appropriator 
is  entitled  not  only  to  his  needs  and  necessities  at  that  time,  but  to 
such  other  and  further  amount  of  water,  within  the  capacity  of  his 
ditch,  as  would  be  required  for  the  future  improvement  and  ex- 
tended cultivation  of  his  land,  if  the  right  is  otherwise  kept  up."  12 

Third,  he  can  hold  this  future  needed  amount  only  for  a  reason- 
able time ;  if  he  holds  it,  without  using  it,  longer  than  is  reasonable 
under  the  circumstances  of  each  case,  -the  right  to  it  is  lost  by 
abandonment,  and  he  will  be  limited  to  the  amount  in  use  at  the 
time  of  an  intervening  appropriation  by  another.  Four  years  were 
held  to  be  an  unreasonable  time  in  Senior  v.  Anderson,13  on  the 
facts  of  that  case,  saying:  "We  do  not  hold  that  the  Hines  appro- 
priation is  limited  by  the  quantity  of  water  he  could  put  to  a  useful 
purpose  upon  his  land  the  first  or  second  year,  but  to  such  quantity 
as  he  could  put  to  a  useful  purpose  upon  his  land,  within  a  reason- 
able time  by  the  use  of  reasonable  diligence We  think  that 

6  Becker  v.  Marble  Creek  etc.  Co.,      Grande  etc.  Co.,  37  Colo.  512,  86  Pac. 
15    Utah,    225,    49    Pac.    892,    1119;       1042. 

Brown  v.  Baker,  39   Or.   66,   65  Pac.  9  Rutherford  v.  Lucerne  etc.  Co.,  12 

799,  66  Pac.  193;  Toohey  v.  Campbell,  Wyo.  299,  75  Pac.  445. 

24  Mont.   13,  60  Pac.   396;   Tanghen-  10  McDonald  v.   Lannen,   19   Mont. 

baugh  v.  Clark,  6  Colo.  App.  235,  40  78,  47  Pac.  648. 

Pac.  153;  Ison  v.  Sturgill  (Or.  1910),  n  Union  etc.   Co.  v.   Dangberg,   81 

109    Pac.    379;    Porter    v.    Pettengill  Fed.  73.     The  italics  are  ours. 

(Or.),  110  Pac.  393;  Long  on  Irriga-  12  See   cases   cited  supra,   sec.   475, 

tion,  sec.  59.  capacity  of  ditch.     See,  also,  Smith  v. 

7  Ibid.;    Sieber   v.    Frink,    7    Colo.  Duff   (1909),  39  Mont.  182,  133  Am, 
148,  2  Pac.  901.  St.  R*p.  507,  102  Pac.  984, 

8  Farmers'    Union   etc.   Co.   v.   Rio  13  Supra. 


$  484  Ch.  21.     QUANTITY  OF  WATER.  (3d  ed.)  515 

the  time  elapsing  after  1883  14  was  ample  to  bring  under  cultivation 
all  the  land  upon  the  Hines  place  intended  for  cultivation  by  the 
use  of  water."  This  is  the  requirement  of  beneficial  use  adapted 
to  a  situation  demanding  delay.15  "What  is  a  reasonable  time  is  a 
question  of  fact  in  each  case.  "What  is  a  reasonable  time  in  which 
to  apply  water  originally  intended  to  be  used  for  some  beneficial 
purpose  depends  upon  the  magnitude  of  the  undertaking  and  the 
natural  obstacles  to  be  encountered  in  executing  the  design.'.' 16  It 
has  been  held  that  the  time  during,  which  a  colonization  company 
was  seeking  to  induce  immigration  is  a  reasonable  time.17  Five 
years  have  been  held  too  long ; 18  ten  years ; 19  thirteen  years ; 20 
eighteen  years.21  On  the  other  hand,  seven  years  have  been  held 
a  reasonable  time ; 22  thirteen  years ;  ^  fourteen  years.1  In  Cali- 
fornia there  is  ground  for  saying  that  five  years  will  be  a  limit. 
In  Smith  v.  Hawkins,2  it  was  laid  down  as  a  general  proposition  in 
California  that  in  all  cases  the  right  is  lost  by  forfeiture  if  there 
is  a  failure  for  five  years  to  apply  the  water  to  a  beneficial  use. 
The  principle  of  forfeiture  after  a  definite  period  of  nonuse  ap- 
pears also  in  the  recent  water  codes.3  For  example,  in  the  Idaho 
statute  it  is  provided  that  actual  application  and  use  of  the  waters 
must  be  made  within  a  time  fixed  by  the  State  Engineer  when  he 
issues  the  permit  of  appropriation,  and  shall  not  exceed  four  years.4 
In  adjudication  of  existing  priorities  by  the  courts,  the  time,  not 
exceeding  four  years,  and  the  amount,  for  future  needs,  must  be 
fixed  by  the  decree.5  Similar  provisions  fixing  the  time  for  future 

14  To  1887.  1  Semble,     Hall     v.     Blackman,     8 

15  Cf.  ante,  sec.  383,  diligence.  Idaho,  272,  68  Pac.  19. 

16  Seaweard  v.  Pacific  etc.  Co.,  49  On  what  is  a  reasonable  time  see, 
Or.  157,  88  Pac.  693.  also,  Gates  v.  Settlers'  Co.,  19  Okl.  83, 

17  Nevada  Ditch  Co.  v.  Bennett,  30  91    Pac.    856;    Brown    v.    Newell,    12 
Or.  59,  60  Am.  St.  Rep.  777,  45  Pac.  Idaho,  166,  85  Pac.  385,  citing  Idaho 
472.  cases;  Beers  v.  Sharpe,  44  Or.  386,  75 

18  Seaweard  v.  Pacific  etc.  Co.,  49  Pac.  719;  Nevada  etc.  Co.  v.  Bennett, 
Or.  157,  88  Pac.  963.  30  Or.  59,   60  Am.   St.  Rep.   777,  45 

19  Hindman   v.   Rizor,   21   Or.    112,  Pac.  472;   Conant  v.  Jones,  3  Idaho, 
27  Pae.  13;  Cole  v.  Logan,  24  Or.  304,  606,  32  Pae.  250.     See  supra,  sec.  383, 
33  Pac.  568;  Hough  v.  Porter,  51  Or.  diligence. 

318,  95   Pac.   732,  98  Pac.   1083,   102  2  no  Cal.  122,  42  Pac.  453,  affirmed 

Pac.  728.  in  120  Cal.  86,  52  Pac.  139,  19  Morr. 

20  Low  v.  Rizor,  25  Or.  551,  37  Pac.  Min.  Rep.  243.     The  case  of  Smith  v. 
82.  Hawkins     is    quoted    and    considered 

21  New    Mercer    etc.    Co.    v.    Arm-  again  later,  infra,  sec.  575. 
strong,  21  Colo.  357,  40  Pac.  989.  3  Infra,  sec.  576. 

22  Moss  v.  Rose,  27  Or.  595,  50  Am.  4  Stats.  1903,  p.  223,  sees.  1,  2,  6; 
St.  Rep.   743,  41  Pac.   666.  sec.  1,  as  amended  1905,  p.  357. 

23  Semble,    Rodgera    v.    Pitt,    129  5  ibid.,  sec.  38. 
Fed,  932. 


516  (3d  ed.)    Pt.  III.     THE  LAW  OF  PRIOR  APPROPRIATION.          §  485 

application  of  the  water  exist  in  the  statutes  passed  since  1903,  by 
some  of  the  other  States.  The  Idaho  statute  in  1907  6  provides  that 
the  forfeiture  for  the  statutory  period  of  nonuse  (five  years)  shall 
not  apply  to  the  matter  now  under  consideration. 

Fourth,  probably,  until  the  appropriator's  future  needs  have 
become  present  needs,  and  the  extra  amount  is  actually  used,  others 
may  use  the  water  temporarily.7 

(3d  ed.) 

§  485.  Same. — Some  general  quotations  may  be  added.  In 
Arnold  v.  Passavant,8  the  appropriation  was  made  for  one  hundred 
and  eighty  acres,  but  only  forty-five  were  cultivated  at  the  time  a 
later  claim  was  initiated.  The  prior  claim  for  enough  to  irrigate 
one  hundred  and  eighty  acres  was  upheld,  the  evidence  being  "that 
he  cultivated  his  land  and  used  water  to  irrigate  it,  as  he  and  his 
partner  got  money  in  their  pockets."  In  Hall  v.  Blackman9  the 
court  says:  "The  history  of  irrigation  in  this  State  shows  that  the 
public  lands  have  generally  been  taken  by  poor  men,  and  that  they 
have  not  in  twenty  years  brought  into  cultivation  one-half  -the 
land  taken  by  them,  and  if  our  irrigation  laws  required  them  to 
cultivate  all  of  their  land  in  a  very  short  time  or  lose  the  right  to 
water  that  they  had  diverted  and  taken  to  the  place  of  intended 
use,  it  would  result  in  defeating  the  very  purpose  of  the  public 
land  laws  of  Congress  and  defeat  most  settlers  in  acquiring  the 
right  to  the  use  of  sufficient  water  to  irrigate  their  lands."  In 
Rodgers  v.  Pitt,10  Judge  Hawley  says:  "The  conditions  [draining 
sloughs  and  plowing  sagebrush']  on  the  land  had  to  be  changed 
in  order  to  apply  the  water  claimed  and  appropriated  to  a  useful 
and  beneficial  purpose.  It  was  part  of  the  enterprise  which 
Marker  had  in  view  in  making  his  appropriation.  There  is  no 
principle  of  law  that  required  him  under  such  circumstances  to 
delay  making  his  appropriation  until  after  he  succeeded  in  drain- 
ing the  land  and  putting  it  in  a  condition  where  it  could  be  culti- 
vated. ' '  Kinney  on  Irrigation  u  says :  ' '  We  find  that  the  rule  is 
that  he  may  make  an  appropriation  of  all  the  water  that  he  will 
need  upon  his  land,  and  that  the  fact  that  he  does  not  make 
immediate  use  of  the  whole  land  will  not  destroy  his  priority  of 

6  Stats.    1907,  p.  507.  »  8  Idaho,  272,  68  Pac.  19. 

T  See  Seaweard  v.  Pacific  etc.  Co.,  10  129  Fed.  932. 

49  Or.  157,  88  Pac.  963.  n  Sec.  668a.     And  see  Long  on  IT- 

8  19  Mont.  275,  41  Pac.  400.  rigation,  sec.  48. 


§  485  Ch.  21.     QUANTITY  OF  WATER.  (3d  ed.)  517 

right  if  he  continues  the  development  of  his  land  and  makes  a  full 
use  of  his  water-right  within  a  reasonable  time." 

A  recent  Oregon  case12  says:  "When  an  ordinarily  prudent 
person  makes  a  prior  appropriation  to  irrigate  arid  land  of  which 
he  is  the  owner,  or  in  the  lawful  possession  expecting  to  acquire 
title  thereto,  if  such  land  will  be  benefited  by  irrigation,  and  the 
volume  of  the  stream  is  sufficient  therefor,  it  is  reasonable  to  sup- 
pose that  he  has  in  mind  both  the  extent  of  his  land  and  the  amount 
of  the  water  at  the  time  of  his  appropriation,  and  that  he  intends 
to  reclaim  the  entire  area  thereof,  either  by  the  ditches  constructed 
at  the  time  or  by  a  canal  system  then  in  contemplation.  But 
pioneers  on  the  public  domain  do  not  ordinarily  possess  great 
wealth,  and  hence  cannot  rapidly  convert  arid  land  into  farms; 
and,  such  being  the  case,  the  law  allows  a  reasonable  time  in  which 
to  complete  the  appropriation.  If  the  increase  in  the  area  of 
arable  land  for  the  irrigation  of  which  water  has  been  diverted 
varies  with  and  is  measured  by  the  lapse  of  time,  the  additional 
application  of  water  annually  to  meet  the  augmented  demand 
causes  the  appropriation  to  relate  back  to  its  inception,  thereby 
cutting  off  all  intervening  rights  of  adverse  claimants  to  the  use 
of  such  water.13  What  is  a  reasonable  time  in  which  to  apply 
water  originally  intended  to  be  used  for  some  beneficial  purpose 
depends  upon  the  magnitude  of  the  undertaking  and  the  natural 
obstacles  to  be  encountered  in  executing  the  design."  u 

The  supreme  court  of  Utah  has  recently  held  that,  where  done 
in  good  faith,  an  appropriation  may  be  made  wholly  for  future 
use.15 

12  Seaweard  v.  Pacific  etc.  Co.,  49  ities  may  permit,  until  he  has  put  to 
Or.   157,  88  Pac.  963.  a  beneficial  use  the  entire  amount  of 

13  Citing   Simmons   v.   Winters,    21  water    at    first    diverted   by    him    and 
Or.  35,  28  Am.  St.  Rep.  727,  27  Pac.  conducted    to    the    point    of    intended 
7;  Hindman  v.  Rizor,  21  Or.  112,  27  use."     Conant  v.  Jones,  3  Idaho,  606, 
Pac.  13 ;  Cole  v.  Logan,  24  Or.  304,  33  32  Pac.  250. 

Pac.  568 ;  Smyth  v.  Neal,  31  Or.  105,  "Respondent  has  increased  the  area 

49  Pac.  850.    "  of  his  irrigated  lands  in  the  last  few 

14  Citing  Hindman  v.  Rizor,  21  Or.  years,  which  we  think  he  had  a  perfect 
112,  27  Pac.  13;  Nevada  Ditch  Co.  v.  right  to  do."     Lockwood  v.  Freeman, 
Bennett,   30   Or.   59,   85,   60   Am.    St.  15  Idaho,  395,  98  Pac.  295. 

Rep.  777,  45  Pac.  472.  l5  "May  an  application  be  made  to 
"In  the  meantime,  however,  he  is  appropriate  water  for  a  beneficial  pur- 
only  entitled  to  such  water  from  year  pose  so  contemplated  in  the  future! 
to  year  as  he  puts  to  a  beneficial  use.  We  confess  that  the  question  is  open 
A  person  may  add  his  application  of  to  debate,  and  is  not  free  of  doubt, 
•water  thereto  for  irrigation  as  his  We  have,  however,  with  some  hesi- 
necessities  may  demand,  as  his  abil-  tancy,  reached  the  conclusion  that  such 


518   (3d  ed.)  Pt.  III.     THE  LAW  OF  PEIOE  APPROPRIATION.         §  485a 

Eights  pending  completion  at  the  time  a  decree  is  rendered  set- 
tling rights  must  be  left  open  by  the  decree.16 

(3d  ed.) 

§  485a.  Same. — Upon  the  proper  classification  of  this  principle 
which,  adapting  an  expression  of  Judge  Hawley's,  we  have  called 
"appropriation  for  future  needs,"  the  cases  are  not  always  agreed. 
"We  have  considered  it  as  a  question  of  the  amount  of  water  which 
an  appropriator  may  hold  against  others.  This  follows  the  original 
theory  of  appropriation  as  being  complete  on  diversion  and  prima 
facie  to  the  amount  of  the  capacity  of  the  ditch,  the  question  of 
when  actual  use  is  or  is  not  made  being  a  question  of  waste  and 
abandonment.  In  the  foregoing  quotations  this  point  of  view  ap- 
pears in  such  expressions  as  holding  "the  water  they  had  diverted 
and  taken  to  the  place  of  intended  use."  On  the  other  hand,  it 
is  often  considered  as  a  question  in  the  making  of  an  appropria- 
tion, on  the  theory  that  the  appropriation  is  not  complete  until  ac- 
tual use  is  made.  According  to  this  view,  the  principles  we  have 
given  are  to  be  classified  as  follows:  The  contemplation  of  the  en- 
largement is  equivalent  to  the  bona  fide  intention  required  in 
making  an  appropriation ;  as  to  reasonable  time,  that  is  the  element 
of  diligence ;  as  to  temporary  use  of  interveners,  that  is  the  principle 
of  relating  back  delayed  to  actual  application  instead  of  taking 
place  on  diversion.  This  latter  view  of  the  proper  place  of  the 
principle  appears  above  in  an  Oregon  case  which  says:  "The  addi- 
tional application  of  water  annually  to  meet  the  augmented  de- 
mand causes  the  appropriation  to  relate  back  to  its  inception, 
thereby  cutting  off  all  intervening  rights  of  adverse  claimants  to 
the  use  of  the  water. "  To  the  writer  it  seems  an  illustration  of  the 
theory  that  the  diversion  completes  the  appropriation  and  the 
capacity  of  the  ditch  is  prima  facie  the  amount  thereof,  but  that 
waste  or  failure  of  beneficial  use  rebuts  the  prima  facie  case  on  the 
principles  of  abandonment  or  forfeiture. 

It  is  a  rule  of  holding  the  capacity  of  the  ditch  for  future  use. 
Prima  facie,  the  capacity  of  the  ditch,  being  the  amount  in  actual 
possession,  is,  as  already  discussed,  the  amount  appropriated;  but 

an  application  may  properly  be  made  not    made    for    the    purpose    of    mere 

when  it   is   made   in   good   faith   and  speculation  or  monopoly."    Sowards  v. 

with  an  actual  bona  fide  intention  and  Meagher  (Utah),  108  Pac.  1113. 

a   present   design   to   appropriate   the  16  Conley  v.  Dyer,  43  Colo.  22,  95 

water  for  a  beneficial  use,  though  con-  Pae.  304. 
templated  in  the  future,  and  when  it  ia 


§  486  Ch.  21.     QUANTITY  OF  WATER.  (3d  ed.)  519 

all  not  used  within  a  reasonable  time  is  abandoned.  "Where  due 
diligence  is  used  to  put  the  full  capacity  to  use  within  a  reasonable 
time,  abandonment  is  negatived.  The  principle  is  sometimes  called 
that  of  annual  increase  of  irrigation;  but  the  designation  of  "ap- 
propriation for  future  needs"  which  is  suggested  by  an  expression 
in  an  opinion  above  quoted  from  Judge  Hawley,  is  more  expres- 
sive of  the  situation,  since  the  rule  is  one  of  holding  the  capacity 
of  the  ditch  for  the  future  enlarged  cultivation.  It  is  an  example 
of  the  possessory  side  of  the  law.16* 

We  have  discussed  this  point  at  some  length  because  it  is  one 
of  unusual  importance,  and  because  it  indicates  a  "possessory"  sur- 
vival in  fitting  the  law  of  appropriation  to  irrigation.  It  seems 
to  the  writer  one  of  the  unconscious  instances  in  which  irrigation 
has  induced  in  the  law  of  appropriation  a  tendency  to  adopt  some 
of  the  principles  of  the  common  law  of  riparian  rights.  It 
undoubtedly  lessens  the  insistence  upon  actual  use,  when  the  right 
may  thus  lie  in  abeyance  for  years  without. use,  not  unlike  the  way 
it  does  at  common  law. 

The  present  policy  is  to  favor  those  who  actually  undertake  to 
settle  in  the  hitherto  unsettled  regions  and,  toward  them,  to  be 
liberal  in  enforcing  the  rule  of  beneficial  use.  Correspondingly, 
this  liberality  to  the  first  settlers  somewhat  discourages  later 
arrivals;  but  irrigation  actually  undertaken  is  considered  worth 
more  than  later  possibilities. 

• 

D.     DUTY  AND  MEASUREMENT  OF  WATER. 
(3d  ed.) 
§  486.    Measurement    of    Water. — The    original    standard    of 

measurement  was  the  miner's  inch.  The  courts,  however,  do  not 
insist,  aside  from  statute,  upon  any  special  mode  of  designation. 
"That  is  certain  which  can  be  made  certain;  and  if  any  particular 
kind  of  water  measurement  has  been  in  use  in  that  locality,  such 
customary  measurement  would  apply  in  a  determination  of  the 
extent  of  plaintiff's  ownership  in  the  carrying  capacity  of  the 
pipe-line."  17 

16»  See  particularly  sec.  139,  supra.  held,  also  shows  that  it  could  not  have 

17  Collins  v.  Gray,  3  Cal.  App.  723,  been  according  to  the  statutory   defi- 

86  Pac.  893.     "Inch"  means  any  meas-  nition.     Logan     v.      Guichard      (Cal. 

urement    shown    by    evidence,    but    is  1911),     114     Pac.     989.     See,     also, 

meaningless  where  the  evidence  shows  Crane  v.  McMurtrie  (N.  J.  1911),  78 

no  method,  of  measurement,  and,  it  is  Atl.  170. 


520  (3d  ed.)    Pt.  III.     THE  LAW  OF  PEIOE  APPROPRIATION.         §  486 

What  constitutes  a  miner's  inch  varies  in  different  localities.18 
It  is  said  of  the  California  inch:  "The  term  'miner's  inch'  is  more 
or  less  indefinite,  for  the  reason  that  California  water  companies 
do  not  all  use  the  same  head  above  the  center  of  the  aperture, 
and  the  inch  varies  from  one  and  thirty-six  hundredths  to  one  and 
seventy-three  hundredths  cubic  feet  per  minute  each;  but  the  most 
common  measurement  is  through  an  aperture  two  inches  high  and 
whatever  length  is  required,  and  through  a  plank  one  and  one-half 
inches  thick.  The  lower  edge  of  the  aperture  should  be  two  inches 
above  the  bottom  of  the  measuring-box  and  the  plank  five  inches 
high  above  the  aperture,  thus  making  a  six-inch  head  above  the 
center  of  the  stream.  Each  square  inch  of  this  opening  represents 
a  miner's  inch,  which  is  equal  to  a  flow  of  one  and  one-half  cubic 
feet  per  minute."19  Of  the  Colorado  inch  it  is  said:  "In  Colo- 
rado an  'inch'  is  the  volume  which  will  pass  through  an  orifice 
one  inch  square  under  a  pressure  of  five  inches,  measured  from 
the  top  of  an  orifice,  .and  varies  somewhat  with  the  number  of 
inches  sought  to  be  measured;  thirty-eight  and  four-tenths  inches 
is  the  accepted  equivalent  of  a  cubic  foot  per  second,  however. ' ' 20 

It  has  been  held  that  the  word  "inch"  means  such  customary 
inch  as  prevails  in  a  given  locality.21  Statutory  definitions  of 
"miner's  inch"  sometimes  appear.22  In  Oregon  it  has  been  held 
that  when  the  record  is  silent  as  to  the  quantity  of  water  in- 
tended by  the  word  "inch,"  it  will  be  presumed  to  be  measured 
under  a  six-inch  pressure.23  In  Idaho  the  statute  provides  for  a 
four-inch  pressure.24 

18  Dougherty    v.    Haggin,    56    Cal.  repealed."      A    similar    act    exists    in 
522,  15  Morr.  Min.  Rep.  211.  Montana,    Stats.  1899,  p.  117.     Note, 

19  Kent's      Mechanical      Engineer's  however,     that    the     California     Civil 
Pocketbook,  p.  18.  Code,  section  1415,  requires  the  meas- 

20  Bulletin  118,  U.  S.  Dept.  Agric.  urement  to  be  under  a  four-inch  pres- 
Exper.  Sta.,  .p.  73.     See  2  M.  A.  S.,  sure,  while  the  above  statutory  meas- 
sec.  4643.  urement   required  is  under  a   six-inch 

21  Collins  v.  Gray,  3  Cal.  App.  723,  pressure.     It   has   been   held  in   Cali- 
86  Pac.  983.     See  Carron  v.  Wood,  10  fornia    that    the    statutory  -  definition 
Mont.    500,    26    Pac.    388;    Logan    v.  will  not  be  applied  where  the  evidence 
Guichard    (Cal.   1911),   114  Pac.   989.  shows  that  the  parties  did  not  intend 

22  Cal.    Stats.    1901,   p.    660:   "Sec-  to  be  governed  by  it.     Logan  v.  Gui- 
tion  1.     The  standard  miner's  inch  of  chard   (Cal.  1911),  114  Pac.  989. 
water  shall  be  equivalent  or  equal  to  23  Gardner  v.  Wright,   49   Or.   609, 
one  and  one-half  cubic  feet  of  water  91  Pac.  286;  Morgan  v.  Shaw,  47  Or. 
per    minute     measured    through     any  333,   83   Pac.   534;    Bowman  v.   Bow- 
aperture    or    orifice.      Section    2.     All  man,  35  Or.  279,  57  Pac.  546. 

acts  or  parts  of  acts  inconsistent  with          24  Laws  1889,  p.  380,  sec.  1. 
the  provisions  of  this  act  are  hereby 


§486 


Ch.  21.     QUANTITY  OP  WATER. 


(3ded.)  521 


The  designation  by  "miner's  inches"  is  falling  into  disuse,  and, 
instead,  the  "second-foot"  is  taking  its  place;  being  a  flow  of 
one  cubic  foot  per  second  of  time.  This  is  now  the  statutory 
standard  generally.25  The  second-foot  being  the  unit  of  flow,  the 
unit  of  volume  is  either  one  cubic  foot,1  or  one  acre-foot.2  The 
ratio  between  the  miner's  inch  and  the  second-foot,  is  not  always 
given  the  same,  owing  to. the  variation  in  the  meaning  of  miner's 
inch.  Thus,  the  second-foot  is  sometimes  declared  equal  to  fifty 
inches,3  or  to  forty  inches,4  or  to  ,thirty-eight  and  four-tenths 
inches.5  Some  further  discussion  of  the  miner's  inch  is  given  in 
the  note.6 

The  term  "miner's  inch"  cannot  be  definite  without  the  specifi- 
cation of  the  head  or  pressure.7 


25  E.  g.,  Colorado,  M.  A.  S.  2467; 
Montana,  Stats.  1907,  p.  489,  sec.  10; 
Nebraska,  Comp.  Stats.  1903,  sec.  6428 ; 
Nevada,  Comp.  Laws,  1900,  Stats. 
1907,  p.  30,  sec.  6;  New  Mexico,  Stats. 
1905,  p.  270,  sec.  3;  North  Dakota, 
Stats.  1905,  c.  34,  sec.  47;  Okla- 
homa, Stats.  1905,  p.  274,  c.  21,  sec. 
27;  South  Dakota,  Stats.  1905,  p.  201, 
sec.  44,  Stats.  1907,  p.  180,  see.  45; 
Utah,  Stats.  1905,  c.  108,  sec.  48.; 
Washington,  Pierce's  Codes,  sec.  8942; 
Wyoming,  Rev.  Stats.  968. 

1  E.  g.,  Colorado,  M.  A.  S.  2467. 

2  E.    g.,    Utah,    Oklahoma,     South 
Dakota,  and  New  Mexico  statutes  just 
cited. 

3  New   Mexico,   North  Dakota  and 
South    Dakota    statutes,    supra;    Ne- 
braska, Comp.  Stats.  1903,  sec.  6440; 
Cobbey's  Ann.  Stats.,  sec.  6786.     The 
State   Engineer   of   Idaho   adopts   the 
same   ratio.     The   same   is  .the    usual 
practice    in    California    although    the 
statutory  definition  is  forty. 

4  Montana  Stats.  1907,  p.  489,  sec. 
10.    The  same  is  the  equivalent  of  the 
California  statute  of  1901,  page  660, 
quoted  above.  »The  same  was  also  ac- 
cepted in  Gardner  v.  Wright,  49  Or. 
609,  91  Pac.  286.     The  Arizona  inch 
is  the  same. 

5  Colorado  as  given  in  Bulletin  118, 
U.  S.  Dept.  Agric.  Exper.  Sta.,  p.  73, 
and  enacted   (semble)  in  2  M.  A.  S., 
sec.  4643. 

•  6  Speaking  of  the  miner's  inch,  it 
was  recently  held  (Gardner  v.  Wright, 
49  Or.  609,  91  Pac.  286)  :  "This  desig- 


nation, however,  is  not  sufficiently  defi- 
nite to  be  a  safe  guide  at  all  times  in 
ascertaining  when  the  rights  of  a  per- 
son awarded  a  given  number  of  inches 
under  six-inch  pressure,  etc.,  are  being 
invaded.  (Citing  this  book,  first 
edition,  pages  147,  175;  Newell's 
(Practical)  Irrigation,  p.  128;  Trout- 
wine  on  Civil  Engineering,  p.  546; 
Merriman's  Treatise  on  Hydraulics 
(1904),  pp.  122,  123,  124.)  It  is 
evident  that  the  only  reliable  method 
by  which  any  certain  number  of  inches 
of  water,  when  awarded  under  this 
method  of  measurement,  can  always  be 
determined,  is  on  the  basis  of  what  is 
termed  by  engineers  as  'second-feet,' 
or  quantity  of  water  flowing  past  a 
certain  point  in  a  given  space  of  time. 
The  ratio  recognized  by  the  authorities 
cited  and  rule  quoted  is  that  one  inch 
of  water  under  six-inch  pressure  equals 
one-fortieth  of  a  'second-foot' — that  is, 
forty  miner's  inches  furnish  a  flow  of 
water  equal  to  one  cubic  foot  (seven 
and  one-half  gallons)  per  second  of 
time — which  ratio  we  find  substantially 
accurate,  and  will  be  adopted  here." 
See,  also,  Hough  v.  Porter,  51  Or. 
318,  95  Pac.  732,  98  Pac.  1083,  102 
Pac.  728;  Whited  v.  Cavin  (Or.  1909), 
105  Pac.  396. 

7  Longmire  v.  Smith,  26  Wash.  439, 
450,  67  Pac.  246,  58  L.  R.  A.  308; 
Ison  v.  Sturgill  (Or.),  109  Pac.  579, 
specifying  six-inch  pressure.  The  term 
"head  of  water,"  as  used  with  refer- 
ence to  water  for  irrigation  purposes, 
has  been  saiu  to  be  the  quantity  enter- 


522  (3d  ed.)    Pt.  III.     THE  LAW  OF  PEIOR  APPROPRIATION.          §  487 

One  acre-foot  equals  43,560  cubic  feet,  or  325,850  gallons.  One 
second-foot  of  water  running  for  twenty-f9ur  hours  would  equal 
about  one  and  ninety-eight  hundredths  acre- feet;  therefore,  one 
second-foot  running  eight  months  would  equal  about  four  hun- 
dred and  seventy-five  acre-feet.  One  second-foot  running  eight 
months  would  cover  seventy  acres  nearly  seven  feet  deep.  The 
amount  of  water  sufficient  to  cover  the  ground  two 'and  one-half 
feet  deep  is  generally  considered  plenty  if  beneficially  used; 
therefore,  one  second-foot  should,  it  has  been  said,  be  sufficient  to 
irrigate  one  hundred  to  two  hundred  acres.8  A  second-foot 
equals  seven  and  forty-eight  hundredths  United  States  gallons  per 
second.  , 

In  Colorado9  the  State  Engineer  shall  furnish  a  rating  table  to 
be  used  in  measuring  the  water  flowing  to  or  from  a  public 
stream  into  which  it  has  been  discharged  for  conveyance.  Under 
a  recent  Oregon  statute,  a  "horse-power"  is  defined  as  five  hun- 
dred and  fifty  pounds  of  water  per  second  of  time  for  each  foot 
of  available  fall.10  In  connection  with  pumping  and  city  water 
supply  the  term  "gallons  per  minute"  is  usually  used.  The 
"acre-foot"  is  the  usual  storage  unit.  A  table  of  equivalents 
will  be  found  in  a  publication  of  the  United  States  Department 
of  Agriculture.11  Some  foreign  methods  are  mentioned  in  the 
following  note.12 

(3d  ed.) 

§  487.  Duty  of  Water. — Legislation  has,  recently,  in  several 
States,  specified  the  minimum  of  beneficial  use  for  irrigation  at  be- 
ing the  intake  of  any  canal  or  ditch,  to  a  fixed  schedule.  These  divisions  are 
Hough  v.  Porter,  51  Or.  318,  95  Pac.  not  made  by  fixed  volumes  but  by 
732,  98  Pac.  1083,  102  Pac.  728.  The  aliquot  parts  of  the  total  discharge." 
term  usually,  however,  indicates  pres-  Armard  on  Spanish  Irrigation,  pp. 
sure  and  not  quantity.  Head  of  water  24,  25,  given  in  Hall's  Irrigation  De- 
ancl  grade  of  ditch  should  be  given,  it  velopment,  Part  I,  p.  384.  In  Sar- 
is held  in  Logan  v.  Guichard  (Gal.  dinia,  "The  module  of  water  is  that 
1911),  114  Pac.  989.  quantity  which,  under  simple  pres- 

8  Hough  v.  Porter,  supra.  sure,    and    with    a    frfce    fall,    passes' 

»  3  M.  A.  S.,  1905  ed.,  2286c.  through    a    quadrilateral    rectangular 

10  Or.  Stats.  1909,  c.  221,  see.  3.  opening,  so  placed  as  that  two  of  its 

11  Water  Supply  Paper,  250,  page  sides  shall  be  vertical,  with  a  breadth 
11     (Office    of    Experiment    Stations,  of   two    decimeters,   a   height   of   two 
United  States  Department  of  Agrieul-  decimeters,  and  opening  in  a  thin  plate 
ture).  against  which  the  water  rests  and  is 

12  In  Spain,  "This  unit  is  called  a  maintained,  with  its  surface  perfectly 
'thread  of  water/  and  the  volume  of  free,  at  a  height  of  four  decimeters 
the  stream  when  all  in  use  is  divided  above  the  lower  edge  of  the  opening." 
into    one    hundred    and    thirty-eight  "Sardinian    Code,    sec.    643,    given    in 
'threads,'   each   canal   taking   its   pro-  Hall's  Irrigation  Development,  Part  I, 
portionate  part  of  the  whole,  according  p.  245. 


§487 


Ch.  21.     QUANTITY  OF  WATER. 


(3ded.)  523 


tween  fifty  and  eighty  acres  per  second-foot  of  water,  and  so 
fixed  the  amount  of  water  that  can  be  allotted  to  each  appro- 
priator.  In  Idaho  the  statute  specifies  one  second-foot  for  fifty' 
acres.13  In  Nebraska,  New  Mexico,  Oklahoma,  South  Dakota 
and  Wyoming,  it  is  one  second-foot  for  each  seventy  acres.14  In 
North  Dakota  it  is  one  second-foot  for  each  eighty  acres.15  In 
Nevada  the  statute  specifies  three  acre-feet  per  year  for  five 
months,  adding  one-half  an  acre-foot  each  succeeding  month  up 
to  nine  months.16.  Measurement  by  volume,  rather  than  by  flow, 
recommended  by  many  engineers.17  In  North  Dakota  a  special 
statute  governing  flood  waters  from  coulees  specifies  a  maximum 
of  two  acre-feet  per  year  for  any  irrigating  season.18  Under  the 
United  States  Reclamation  Service  about  one  and  one-half  acre- 
feet  per  season  is  allowed.19 

In  the  absence  of  statute,  the  duty  of  water  is  sometimes  figured 
in  inches  per  acre;  an  inch  per  acre  being  considered  liberal.20 
But  in  the  absence  of  statute  it  is  not  a  settled  matter.21  In 
Oregon  it  was  held  that  when  a  duty  of  water  is  adopted  as  the 
basis  of  decree  (e.  g.,  one  and  one-half  to  three  acre-feet  per 


is  Stats.  1903,  p.  233,  sec.  9,  as 
amended  1905,  p.  174.  Unless  the 
State  Engineer  otherwise  specifies 
(which  he  will  only  in  very  unusual 
cases),  and  subject  to  local  customs 
and  rules.  Gerber  v.  Nampa  Irr.  D., 
16  Idaho,  1,  100  Pac.  80,  says  the  duty 
of  water  is  about  one  inch  per  acre. 

14  Nebraska,  see  statutes,  infra;  N. 
M.  Stats.  1905,  p.  270,  sec.  4;  Okl. 
Stats.  1905,  p.  274,  c.  21,  sec.  29;  S. 
D*.  Stats.  1905,  p.  201,  c.  132,'  sec.  46; 
Stats.  1907,  p.  373,  sec.  47;  Wyo.  Rev. 
Stats.,  872. 

is  N.  D.  Stats.  1905,  c.  34,  sec.  49; 
Rev.  Codes  (1905),  sec.  7604  et  seq. 

is  Stats.  1909,  p.  31,  c.  31.  Three 
acre-feet  per  year  was  first  enacted 
Stats.  1903,  p.  18,  sec.  2 ;  then  repealed 
in  Stats.  1905,  p.  66;  then  re-enacted 
in  Stats.  1907,  p.  30,  sec.  5;  then 
amended  in  1909  as  above. 

17  Three    acre-feet    per    year    are 
equivalent  to  about  one  second-foot  for 
one  hundred  and  sixty  acres,  or  about 
a  miner's  inch  for  each  three  acres. 

18  N.  D.  Stats.  1909,  p.  179. 

19  Whited  v.  Gavin   (Or),  105  Pac. 
396. 

20  Gardner  v.  Wright.  49   Or.  609, 
91  Pae.  286;  Hough  v.  Porter,  51  Or. 


318,  95  Pac.  732,  98  Pac.  1083,  102 
Pac.  728;  Whited  v.  Cavin  (Or.),  105 
Pac.  396;  Ison  v.  Sturgill  (Or.),  109 
Pac.  579;  Porter  v.  Pettengill  (Or.), 
110  Pac.  393;  Gerber  v.  Nampa  Irr. 
Dist.,  16  Idaho,  1,  100  Pac.  80;  United 
States  v.  Conrad  Inv.  Co.  (Or.),  156 
Fed.  130.  An  inch  per  acre  held  suffi- 
cient to  allow  for  loss  by  seepage  and 
evaporation.  Nevada  D.  Co.  v.  Can- 
yon etc.  Co.  (Or.),  114  Pac.  86. 

21  In  Hough  v.  Porter,  51  Or.  318, 
95  Pac.  732,  98  Pac.  1083,  102  Pac. 
728,  the  quantity  allowed,  under  the 
evidence,  was  from  one-third  to  two- 
third  inches  per  acre. 

In  Whited  v.  Cavin  (Or.),  105  Pac. 
396,  it  was  held  that  ten  second-feet, 
or  four  hundred  inches,  was  ample  for 
the  irrigation  of  plaintiff's  land  hav- 
ing an  area  of  four  hundred  and  forty 
acres,  and  that  seventeen  inches  per 
acre  is  obviously  never  required  for  the 
irrigation  of  any  land. 

In  one  case  the  aggregate  amount  of 
land  owned  by  the  respondents  was 
15,000  acres;  amount  of  water  claimed 
by  them  was  51,200  inches,  making  an 
average  of  about  three  and  one-half 
inches  of  water  to  the  acre.  There 
was  no  uniformity  among  the  respond- 


524  (3d  ed.)    Pt.  III.     THE  LAW  OF  PRIOR  APPROPRIATION.          §  487 


year),  it  nevertheless  is  subject  to  the  rule  of  actual  use,  and  may  be 
lessened  by  supplemental  order  on  proof  of  lesser  necessity.22 

In  California,  with  the  exception  of  a  late  statute  regarding 
artesian  wells,  there  is  no  statute  or  rule  of  law  upon  the  matter, 
but  the  duty  of  water  is  there  probably  the  highest  in  the  \vorld.23 
According  to  measurements  made  in  1906,  the  average  net  duty 
of  water  for  single  irrigations  of  alfalfa  in  a  certain  district  is 
approximately  seven-tenths  acre-foot,  costing  seventy  cents  per 
acre  of  land.24  In  the  report  of  the  Department  of  Agriculture 
for  1896,  Mr.  Newell,  now  head  of  the  Reclamation  Service,  dis- 
cusses the  duty  of  water,  and  shows  that  the  amount  of  acres 
per  second-foot  now  allowed  in  most  statutes  is  very  generous  as 
compared  with  the  practice  in  Southern  California  where  the 
water  serves  many  more  acres  per  second-foot  than  these  statutes 
specify,  and  such  an  amount  in  Southern  California  would  be 
considered  wasteful.25 


ents  in  this  particular.  The  lowest 
claim  made  was  one  inch  to  the  acre, 
the  highest,  seven  and  one-third  inches 
to  the  acre,  by  one  of  the  largest  land- 
owners in  the  valley.  Union  M.  Co. 
v.  Dangberg,  81  Fed.  73. 

22  Hough  v.  Porter,  51  Or.  318,  95 
Pae.  732,  98  Pac.  1083,  102  Pac.  731. 
Mr.  Justice  King  said:  "In  determin- 
ing the  'duty  of  water,'  or  quantity 
essential  to  the  irrigation  of  any  given 
tract  of  land,  we  must  take  into  con- 
sideration the  character,  the  climatic 
conditions,  the  location  and  altitude 
of  the  lands  to  be  irrigated,  the  kind 
of  crops,  period  of  time  irrigated,  and 
necessary  manner  of  irrigation,  as  well 
as  many  other  contingencies  not  aris- 
ing here.  The  'head'  of  water,  or 
quantity  entering  the  intake  of  any 
canal  or  ditch,  must  also  be  consid- 
ered. A  large  body  of  water,  used  at 
one  time  and  upon  the  same  tract,  will 
reclaim  a  larger  quantity  of  land  pro- 
portionately than  will  a  small  supply; 
for  example,  one  miner's  inch  might 
prove  inadequate  in  many  instances  for 
the  proper  irrigation  of  more  than  a 
small  fraction  of  an  acre,  while  one 
hundred  inches,  or  two  and  one-half 
second-feet,  if  under  the  control  of 
and  used  by  one  person  and  at  one 
time,  might  properly  irrigate  three 
hundred  acres  of  the  same  kind  of 


land.  Applying  these  principles  in  the 
case  at  hand,  where  there  are  no  small 
bodies  or  tracts  involved,  we  think  the 
water  users,  by  the  adoption  and  use 
of  the  more  modern  and  economical 
methods  now  more  generally  applied 
and  in  use,  will  find  that  a  constant 
flow  of  from  one-third  to  two-thirds  of 
an  inch  per  acre  will  prove  adequate 
for  the  proper  irrigation  of  the  lands, 
being,  with  ninety  days'  continuous 
flow,  one  and  one-half  to  three  'acre- 
feet,'  which  is  more  than  allowed  by 
the  government  reclamation  service  in 
Klamath  county."  Hough  v.  Porter, 
51  Or.  318,  95  Pac.  732,  98  Pac.  1Q83, 
at  1102,  102  Pac.  728,  citing  6  Am. 
Eep.  of  Reclamation  Serv.,  p.  195. 

23  Regarding   artesian   wells   Stats. 
1907,  p.  122,  sec.  3,  as  amd.  1909,  c. 
427,    provide    that    permitting    over 
five  per  cent  of  the  water  received  on 
the  land  to  escape  is  waste,  and  that 
one-tenth  of  a  miner's   inch  per  acre 
each  year  is  the  proper  duty  of  artesian 
water    (equivalent,   apparently,   to   an 
inch  for  ten  acres,  and  to  a  second- 
foot  for  four  hundred  acres). 

24  Bulletin    207,    Office    of    Experi- 
ment Stations,  United  States  Depart- 
ment of  Agriculture. 

25  Report  of  U.  S.  Dept.  Agrie.  for 
1896. 


§  488  Ch.  21.     QUANTITY  OF  WATEE.  (3d  ed.)  525 

The  average  for  eleven  ditches  in  Utah  was  fifty  acres  per 
second-foot.1  Results  collected  by  the  Office  of  Experiment  Sta- 
tions of  the  United  States  Department  of  Agriculture  during  tho 
past  few  years  show  that  on  several  canals  in  Montana  the 
average  duty  of  water  was  nearly  four  feet  in  depth  over  the 
surface ;  in  Colorado,  four  feet ;  in  Idaho,  six  feet ;  in  New  Mexico 
and  Washington,  nearly  eight  feet;  and  in  Wyoming  for  1903, 
nearly  ten  feet;  the  general  average  for  eleven  Western  States 
being  over  five  feet.2 

In  determining  the  duty  of  water  as  applied  to  the  conditions 
in  any  particular  case,  evidence  should  be  from  actual  experi- 
ment and  measurement,  if  possible.3  Opinion  evidence  is  of  less 
value  than  experiment,  as  to  which  the  head  of  water  influences 
its  duty,  the  less  the  head  the  greater  the  quantity  needed  to 
spread  it  over  the  land,  and  evidence  should  be  as  definite  as 
possible.4 

(3d  ed.) 

§  488.  Duty  of  Water  as  Affected  by  Loss  in  Transmission. — 
In  a  publication  of  the  United  States  Department  of  Agri- 
culture 5  it  is  shown  that  old  canals  lose  about  fifty  per  cent 
between  the  stream  and  the  lands.  New  canals  lose  about  sixty 
per  cent  between  stream  and  land,  ten  per  cent  being  lost  in  the 
laterals.  Upon  the  land  itself,  about  twenty-five  per  cent  is  lost 
when  the  water -is  applied  by  wetting  the  entire  surface;  reduced 
to  a  loss  of  twelve  and  one-half  per  cent  when  applied  in  deep 
furrows.  A  general  discussion  is  made  of  the  duty  of  water 
under  varying  conditions  of  climate,  soil,  type  of  canal  or 
lateral,  etc.,  and  it  is  concluded:  "From  the  foregoing  discussion 
of  losses  of  water  it  is  apparent  that  not  more  than  fifty  per  cent 
of  the  water  diverted  from  streams  reaches  the  lands  for  which 

1  Bulletin  124,  Office  of  Exp.  Sta.,  hundred  acres  per  second-foot.     Bulle- 
U.  S.  Dept.  Agrie.,  p.  32.  tin  215,  Office  of  Experiment  Stations, 

2  Professor      Samuel      Fortier,      in  United    States    Department    of    Agri- 
"Water  and  Forest"  for  July-October,  culture. 

1906.     Concerning  the  duty  of  water,          3  Farmers'  etc.  Co.  v.  Eiverside  Irr. 

see  Gardner  v.  Wright,  49  Or.  609,  91  Dist.  (1909),  16  Idaho,  525,  102  Pac. 

Pac.    286;    United    States    v.    Conrad  481. 
Inv.  Co.  (Or.),  156  Fed.  130.  4  Whited  v.  Cavin   (Or.),  105  Pac. 

The  State  Engineer  of  Wyoming  re-  396. 

ports   an   average    depth   of   two   and          5  Eeview  of   Ten  Years  of  Irriga- 

fifty-nine  hundredths  feet.     Eeport  of  tion  Investigations,  Annual  Eeport  of> 

St.  Engr.  for  1907-1908.  Office  of  Experiment  Stations  for  the 

Upon  the  Hondo  Eiver  in  New  Mex-  year  ending  June  30,  1908. 
leo    the    State    Engineer    reports    two 


526  (3d  ed.)    Pt.  III.     THE  LAW  OF  PEIOR  APPEOPBIATION.          §  488 

it  is  intended,  the  balance  being  lost  in  transit.  There  are,  fur- 
ther, large  losses  by  evaporation  from  the  soil  and  by  percolation 
beyond  the  reach  of  plant  roots.  It  is  conservative,  therefore, 
to  state  that  not  more  than  one-third  of  the  water  diverted  from 
streams  contributes  to  the  growth  of  plants.  It  has  been  shown 
that  a  large  part  of  the  losses  mentioned  can  be  stopped.  In 
many. sections  the  point  has  already  been  reached  where  a  more 
economical  use  of  water  is  the  only  source  of  supply  for  increas- 
ing the  area  irrigated,  and  this  condition  is  constantly  becom- 
ing more  common."6 

In  calculating  the  amount  actually  used,  the  amount  lost  in 
necessary  fluming  must  be  added,  even  though  there  would  be  no 
loss  if  the  water  were  transported  in  some  other  way  as,  for 
example,  by  a  pipe-line.7  But  use  in  poor  and  leaky  flumes  will 
be  enjoined,8  or  any  waste  from  faulty  means  of  conveyance,  that 
can  be  saved  by  careful  appliances.9  The  fact  that  a  pipe-line 
conveys  water  with  much  less  loss  by  seepage  and  evaporation 
than  a  ditch  does  not  necessarily  show  that  there  is  waste  within 
this  limitation.10  "  Conveying  it  through  a  ditch,  even,  will  al- 
ways cause  some  loss  and,  if  the  distance  is  great,  or  the  soil 
loose  or  porous  the  loss  will  be  considerable.  This,  within  any 
reasonable  expense,  is  generally  unavoidable.  But,  however  this 
may  be,  if  the  appropriation  has  been  made  before  others  ac- 
quired rights  in  the  stream,  after  that  no  change  can  be  made  to 
their  detriment.  The  first  appropriator  must  continue  to  use  it 
in  at  least  as  economical  a  manner  as  before,  and  cannot  change 
the  method  of  use  so  as  to  materially  increase  the  waste."11 

It  has  been  held  that  it  is  the  general  rule  of  large  ditches  that 
seepage  usually  exists  from  their  headgate  along  down  their  line 
until  the  ditch  gradually  winds  its  way  from  the  river  upon  the 

6  "On  the  basis  of  studies  made  by          8  Barrows  v.  Fox    (Gal.),   30  Pac. 
the  Department  it  has  been  estimated      768.     But  see  same  case  on  rehearing 
that  the  water  at  present  turned  into      just  cited. 

the  main  canals  in  the  arid  region  can  9  Town  of  Sterling  v.  Pawnee  Co., 

be  made  to  serve  approximately  double  42  Colo.  421,  94  Pac.  339,  15  L.  E.  A., 

the  area  now  irrigated  with  it,  since  N.  S.,  238. 

not  much  more   than  half   the  water  10  Barrows  v.  Fox,   98   Cal.   63,  32 

entering  the  canals  reaches  the  land,  Pae.  811. 

and  there  are  large  losses  in  applica-  n  Boeder  v.  Stein,  23  Nev.  92,  42 

tion."      Eeport    of    the    Secretary    of  Pac.  867. 

Agriculture  for  1909.  In   issuing   permits,   the   State   En- 

7  Barrows   v.   Fox,   98   Cal.   63,   32  gineer    of    South    Dakota    makes    a 
Pac.  811.     But  see  Courthouse,  etc.  Co.  reasonable  allowance  for  probable  loss 
v.  Willard,   75   Neb.  408,  106  N.  W.  in   transmission.     Eept.   of   St.   Engr. 
463.  for  1908. 


§  489  Ch.  21.     QUANTITY  OF  WATER.  (3d  ed.)  527 

level  lands.  "All  irrigation  canals  must  of  necessity  seep  more  or 
less  along  this  portion  of  their  lines,  and  will  so  continue  until 
prevented  by  other  means  than  ordinary  diligence  in  their  con- 
struction, and  we  do  not  think  the  time  has  yet  been  rsached  in 
this  State  when  the  owners  of  such  enterprises  can  be  held  to  such 
a  high  degree  of  diligence  in  their  construction  as  to  be  com- 
pelled to  prevent  them  from  seeping  at  all,"  etc.12 

Where  a  right  to  the  use  of  water  is  acquired  through  and  by 
the  construction  of  a  ditch  tapping  any  source  of  water  supply, 
and  the  users  thereafter  elect  to  take  the  water  thus  diverted 
from  other  points  on  the  stream,  due  allowance  must  be  made  for 
loss  by  evaporation,  including  such  loss  as  may  occur  under 
different  methods  of  use  and  distribution,  which  loss  must,  so  far 
as  practicable  of  ascertainment,  be  deducted  from  the  quantity 
awarded  under  the  original  diversion  and  method  of  use.13 

(3d  ed.) 

§  489.     Summary. — To  sum  up  the  rules  concerning  the  amount 

of  water  to  which  an  appropriator  is  entitled: 

The  amount  is  limited  to  that  originally  claimed,  as  stated  in 
the  notice  of  appropriation  or  application  for  permit,  or  deter- 
mined by  the  general  plan  and  purpose  of  the  appropriator  where 
the  appropriation  is  by  actual  diversion  without  notice,  as  still 
permitted  in  California  and  the  States  that  have  not  adopted 
water  codes,  and  possibly  also  in  them;  if  the  capacity  of  the 
ditch  is  less  than  the  amount  claimed,  then  limited  to  the  amount 
actually  diverted,  which  -can  never  exceed  the  capacity  of  the 
ditch;  if  less  than  both  the 'above  is  actually  used,  then  to  the 
amount  actually  used  within  a  reasonable  time,  several  years 
being  allowed  an  irrigator  for  expansion  (but  in  California  prob- 
ably not  more  than  five  years,  and  under  State  water  codes  usually 
less  than  five  years),  during  which  time  his  priority  to  the  unused 
amount  is  preserved,  and  later  comers  can  obtain  only  such 
temporary  rights  therein  as  will  not  interfere  with  his  use  when 
ready. 

In  some  States  it  has  been  provided  by  statute  what  quantity 
of  water  shall  be  allotted  for  irrigation,  being  usually  between 
fifty  and  eighty  acres  per  second-foot  of  flow ;  while  in  Oregon  a 

12  Middlekamp  v.  Bessemer  etc.  Co.          13  Hough'v.  Porter,  51  Or.  318,  98 
(1909),  46  Colo.  102,  103  Pae.  280,  23      Pac.  1083. 
L.  B.  A.,  N.  S.,  795. 


528  (3d  ed.)    Pt.  III.     THE  LAW  OF  PRIOR  APPROPRIATION.          §  489 

similar  result  is  judicially  reached  by  presumption  without  stat- 
ute. There  is  no  such  rule  in  California  or  Colorado,  but  an  inch 
per  acre  (or  one  second-foot  for  forty  acres)  seems  to  be  generally 
regarded  as  more  than  sufficient,  for  all  but  exceptional  cases. 

§§  490-495.     (Blank  numbers.), 


496  Ch.  22.     CHANGE  01!  MODE  OF  ENJOYMENT.     (3d  ed.)  529 


CHAPTER  22. 
LIMITATIONS  ON  CHANGE  OF  MODE  OF  ENJOYMENT. 

A.     GENERAL  PRINCIPLES. 

§  496.     The  right  is  independent  of  the  mode  of  enjoyment. 

§  497.     Same. 

§  498.     No  injury  to  others  allowed. 

§  499.     Right  of  change  chiefly  a  matter  upon  public  lands. 

§  500.     Freedom  of  change  gradually  passing  away. 

B.     CHANGE  OF  MEANS  OF  USE. 
§  501.     Change  of  ditches,  etc. 
§  502.     Same. 
§  503.     Same. 

C.     CHANGE  OF  POINT  OF  DIVERSION. 
§  504.     Change  of  diversion. 
§  505.     Same. 

§  506.     Statutory  restrictions. 
§  507.  .Same. 

D.  CHANGE  OF  PLACE  OF  USE. 
§  508.     Change  of  place  of  use. 

§  509.     Statutory  restrictions. 

§  510.     Change  on  sale  of  water-right. 

E.  CHANGE  OF  PURPOSE  OF  USE. 
§  511.     Change  of  purpose. 

§  512.     Conclusion. 

§§  513-521.     (Blank  numbers.) 

A.     GENERAL  PRINCIPLES. 
(3d  ed.) 

§  496.    The  Right  is  Independent  of  the  Mode  of  Enjoyment. — 

By  appropriating  a  stream  the  law  has  always  considered  that  a 
right  of  property  was  conferred,  and  being  property,  the  owner 
may  enjoy  it  as  he  will,  so  long  as  he  does  no  injury  to  others, 
just  as  he  may  a  farm  or  a  horse  or  other  property.  The  law, 
hence,  has  always  regarded  the  right  as  independent  of  means  or 
place  or  purpose  of  use  or  of  point  of  diversion.  The  litigation 
upon  this  question  has  always  been  addressed  to  the  contention 
that  the  right  was  limited  to  its  initial  mode  of  enjoyment,  and 
that  a  change  forfeits  priority  and  can  only  be  made  by  new 

Water  Rights — 34 


530  (3d  ed.)    Pt.  III.     THE  LAW  OF  PEIOB  APPEOPKIATION.          §  497 

appropriation.  The .  decisions,  now  passed  into  legislation,  almost 
universally,  and  with  but  a  few  exceptions,  decided  against  the 
contention,  and  have  settled  the  rule  that  change  of  means,  place, 
or  purpose  of  use  or  of  diversion  does  not  forfeit  priority.  "A 
priority  to  the  use  of  water  is  a  property  right  which  is  the  sub- 
ject of  purchase  and  sale,  and  its  chapter  and  method  of  use  may 
be  changed,  provided  such  change  does  not  injuriously  affect  the 
right  of  others. ' ' * 

The  law  to  this  effect  took  its  shape  very  early.  It  was  early 
decided  that  the  place  of  use  may  be  changed  without  loss  of 
priority.  It  was  absolutely  necessary  in  the  early  California 
mining  days,  when  the  law  of  appropriation  arose  and  when  new 
ground  was  being  continually  opened  up.  In  Maeris  v.  Bicknell 2 
it  was  held  that  branches  could  be  run  to  new  mining  claims 
without  loss  of  priority,  and  that  the  main  ditch  itself  could  be 
extended  to  new  localities.  The  right  to  change  the  place  of  use 
was  hence  first  established.  It  was  next  held  in  Kidd  v.  Laird  3 
that  the  point  of  diversion  or  taking  the  water  could  likewise 
be  changed.  These  two  decisions  were  relied  on  in  all  jurisdic- 
tions,4 and  passed  into  statutes.5  The  right  to  change  the  pur- 
pose of  use  has  always  been  assumed  to  follow  from  these  two 
cases  and  those  following  them,  rather  than  having  ever  been 
actually  independently  decided. 

(3d  ed.) 

§  497.  Same. — The  right  is  hence  independent  of  point  of  diver- 
sion and  of  manner,  place  or  purpose  of  use.  As  to  the  point  of 
diversion,  the  Wyoming  court  said :  6  ' '  We  are  not  aware  of  any  rule 

1  Seven  Lakes  etc.  Co.  v.  New  Love-  The  right   to   change,   so   limited,  in- 
land etc.  Co.,  40  Colo.  382,  93  Pac.  485,  eludes    the    point    of    diversion,    and 
17  L.  B.  A.,  N.  S.,  329.  place  and   character   of  use."     Fuller 

2  7  Cal.   261,   68  Am.  Dec.   257,   1  v.  Swan  River  P.  M.  Co.,  12  Colo.  19, 
Morr.  Min.  Bep.  601.  19  Pac.  836,  16  Morr.  Min.  Bep.  252. 

.3  15  Cal.  161,  76  Am.  Dec.  472,  4  5  For  example,  Cal.  Civ.  Code,  sees. 

Morr.  Min.  Bep.  571.  1412,  1415;  Pierce's  Washington  Code, 

4  For  example,  "We  think  that  the  sec.  5139.  In  the  Nevada  Stats.  1907, 
rule  announced  in  Kidd  v.  Laird,  15  p.  30,  see.  26,  Stats.  1909,  p.  31,  it  is 
Cal.  162-180,  76  Am.  Dec.  472,  4  Morr.  provided :  "Any  person  changing  his 
Min.  Bep.  571,  'that  in  the  absence  of  place  of  diversion  or  manner  of  use, 
injurious  consequences  to  others  any  as  specified  in  this  act,  shall  not  there- 
change  which  the  party  chooses  to  by  lose  any  priority  of  right  upon  the 
make  is  legal  and  proper'  is  the  only  stream  he  may  have  heretofore  ac- 
true  rule  under  which  the  rights  of  the  quired."  • 

prior   appropriator   can  be   fully   ex-  See  statutes  of  other  States  below, 

ercised,  and  his  rights  and  the  rights  »  Willey   v.   Decker,    11    Wyo.    496, 

of  all  other  persons    fully  protected.  100  Am.  St.  Bep.  939,  73  Pac.  210. 


§497  Ch.  22.     CHANGE  OF  MODE  OF  ENJOYMENT.     (3ded.)53l 

which  restricts  as  to  location  the  point  of  diversion  in  initiating 
an  appropriation,  except  the  probable  requirement  that  it  be  so 
located  as  to  render  the  proposed  diversion  feasible  in  view  of  the 
intended  use,  and  possibly  that,  if  the  proposed  point  of  diversion 
be  situated  upon  lands  of  another,  the  appropriator  shall  secure 
a  right  of  way  for  his  ditch  or  works  to  be  constructed  on  such, 
lands.7  So  far  as  the  mere  right  of  appropriation  is  concerned, 
no  obligation  is  imposed  upon  a  party  to  divert  the  water  at  the 
nearest  possible  point  to  his  land  or  within  any  particular  dis- 
trict." As  to  the  place  of  use,  the  Colorado  court  said:8  "In 
the  absence  of  legislation  to  the  contrary,  we  think  that  the  right 
to  water  acquired  by  priority  of  appropriation  thereof  is  not  in 
any  way  dependent  upon  the  locus  of  its  application  to  the  bene- 
ficial use  designed.  And  the  disastrous  consequences  of  an 
adoption  of  the  rule  contended  for  forbid  our  giving  such  a  con-1 
struction  to  the  statutes  as  will  concede  the  same,  if  they  will 
properly  bear  a  more  reasonable  and  equitable  one."  As  to  pur- 
pose of  use,  and  as  a  concise  statement  of  the  view  of  the  law 
upon  the  general  independence  of  the  right  upon  its  mode  of 
enjoyment,  the  following  case  is  one  of  the  earliest  and  most  ex- 
plicit, and  an  authority  usually  relied  on  in  later  cases: 

"Suppose  a  party  taps  a  stream  of  water  for  the  purpose  of 
surface  mining  in  a  given  locality,  and  afterward  finds  that  the 
ground  will  not  pay  or  that  ground  farther  on  will  pay  better, 
may  he  not  abandon  the  former  and  extend  his  ditch  to  the  latter 
without  losing  his  priority?  Or,  suppose,  after  working  off  the 
surface,  he  finds  quartz,  may  he  not  erect  a  mill  and  convert  the 
water  into  a  motive  power  without  forfeiting  his  prior  right? 
Suppose  he  appropriates  the  water  for  the  purpose  of  running  a 
sawmill,  and,  after  the  timber  is  exhausted,  he  finds  that  a  grist- 
mill will  pay — may  he  not  convert  the  former  into  the  latter  with- 
out surrendering  his  priority  to  someone  who  may  have  subse- 
quently and  in  the  meantime,  tapped  the  stream? 

"We  think  all  this  may  be  done,  and  are  unable  to  suggest  a 
plausible  reason  why  it  may  not.  In  oases  like  the  present,  a 
party  acquires  a  right  to  a  given  quantity  of  water  by  appropria- 
tion and  use,  and  he  loses  that  right  by  nonuse  or  abandonment. 
Appropriation,  use;  and  nonuse  are  the  tests  of  his  right  j  and 

7  Cf.  sec.  221  et  seq.,  supra. 

8  Coffin  T.  Left  Hand  Ditch  Co.,  6  Colo.  443. 


532  (3d  ed.)    Pt.  III.     THE  LAW  OF  PRIOR  APPROPRIATION.          §  498 


place  of  use  and  character  of  use  are  not.  "When  he  has  made  his 
appropriation,  he  becomes  entitled  to  the  use  of  the  quantity 
which  he  has  appropriated  at  any  place  where  he  may  choose  to 
convey  it,  and  for  any  useful  and  beneficial  purpose  to  which  he 
may  choose  to  apply  it.  Any  other  rule  would  lead  to  endless 
complications,  and  most  materially  impair  the  value  of  water- 
rights  and  privileges."9 

(3d  ed.) 

§  498.    No  Injury  to  Others  Allowed. — The  law,  being  thus 

addressed  to  the  preservation  of  the  prior  right,  at  the  same 
time  prohibits  any  invasion  of  the  rights  of  others  existing  at 
the  time  of  the  change.  "Sic  utere  tuo  ut  alienum  non  laedas" 
is  an  old  maxim  of  the  law.  That  no  one  must  be  injured  by  the 
change  is  as  well  settled  as  the  right  to  make  the  change. 

Consequently,  a  change  in  place  of  diversion,  place  of  use,  or  pur- 
pose of  use,  which  necessitates,  for  example,  the  diversion  of  an  ad- 
ditional quantity  of  water,  is  not  permitted  as  against  existing 
claimants  on  the  stream.10  An  appropriator,  when  the  stream  be- 
comes clogged  up  with  debris,  cannot  raise  his  dam  (which  is  equiva- 
lent to  moving  his  point  of  appropriation  up  stream)  if  the  water 
thereby  is  caused  to  flood  mining  claims  above.11  Where  a  person 
had  appropriated  water  for  placer  mining,  and  the  water  had  been 


»  Davis  v.  Gale,  32  Cal.  34,  91  Am. 
Dec.  554,  4  Morr.  Min.  Rep.  604. 

"The  right  to  water  acquired  by 
prior  appropriation  is  not  dependent 
upon  the  place  where  the  water  is  used. 
A  party,  having  obtained  the  prior 
right  to  the  use  of  a  given  quantity  of 
water,  is  not  restricted  in  such  right 
to  the  use  or  place  to  which  it  was 
first  applied.  It  is  well  settled  that  a 
person  entitled  to  a  given  quantity  of 
the  water  of  a  stream  may  take  the 
same  at  any  point  on  the  stream,  and 
may  change  the  point  of  diversion  at 
pleasure,  and  may  also  change  the 
character  of  its  use,  if  the  rights  of 
others  be  not  affected  thereby.'.'  Union 
etc.  Min.  Co.  v.  Dangberg,  81  Fed.  73, 

"A  person  entitled  to  the  use  of 
water  may  change  the  point  of  its  di- 
version, and  may  use  it  for  other  pur- 
poses than  that  for  which  it  was 
originally  appropriated,  provided  al- 
ways, however,  other  parties  are  not 
injured  thereby.  Rev.  Codes,  sec.  4842. 
Even  in  the  absence  of  this  statutory 


declaration  the  rule  would  be  the 
same."  Head  v.  Hale,  38  Mont.  302, 
100  Pac.  222. 

10  Ortman  v.  Dixon,  13  Cal.  33.;  Mc- 
Donald v.  Bear  River  Co.,  13  Cal.  220, 
1  Morr.  Min.  Rep.  626;  McKinney  v. 
Smith,  21  Cal.  374,  1  Morr.  Min.  Rep. 
650;  Davis  v.  Gale,  32  Cal.  26,  91  Am. 
Dec.  554,  4  Morr.  Min.  Rep.  604;  Ne- 
vada etc.  Co.  v.  Powell,  34  Cal.  109,  91 
Am.  Dec.  685,  4  Morr.  Min.  Rep.  253; 
Higgins  v.  Barker,  42  Cal.  233,  7  Morr. 
Min.  Rep.  525;  Santa  Paula  etc. 
Works  v.  Peralta,  113  Cal.  38,  45  Pac. 
168;  Smith  v.  Corbit,  116  Cal.  587,  48 
Pac.  725;  Diez  v.  Hartbauer,  46  Colo. 
599,  105  Pac.  868 ;  Vogel  v.  Minnesota 
etc.  Co.,  47  Colo.  534,  107  Pac.  1108; 
Windsor  Co.  v.  Hott'man  Co.  (Colo.), 
109  P«c.  423;  Whited  v.  Gavin  (Or.), 
105  Pac.  396;  Pomeroy  on  Riparian 
Rights,  sec.  79;  Perry  v.  Calkins 
(Cal.),  113  Pac.  136.  , 

31  Nevada  etc.  Co.  v.  Powell,  34 
Cal.  109,  91  Am.  Dec.  685,  4  Morr. 
Min.  Rep.  253. 


498 


Ch.  22.     CHANGE  OF  MODE  OF  ENJOYMENT.     (3ded.)   533 


used  by  lower  proprietors  for  farming  purposes,  the  first  appro- 
priator's  successors  could  not  change  the  use  so  as  to  deprive  the 
agricultural  appropriators  of  the  water.12  An  appropriation  of 
water  is  limited,  in  quantity  as  well  as  in  time,  to  the  extent  of 
the  appropriation,  and,  where  water  was  taken  from  a  ditch  for 
mining  only  through  the  winter  months  up  to  June  1st,  the  right 
of  appropriation  was  limited  to  that  period,  and  cannot  be 
changed  to  the  injury  of  existing  users.13  A  system  of  exchanges 
of  water  between  reservoir  owners  could  not  be  sustained,  where 
its  effect  would  be  to  convert  junior-  into  senior  rights.14  A 
change  of  point  of  diversion  upstream  which,  without  lessening 
surface  flow,  lessens  seepage  (underflow)  to  injury  of  inter- 
mediate users,  cannot  be  made.15  Some  other  authorities  are 
quoted  in  the  note.1 

No  change  will  be  permitted  to  result  in  any  greater  draft  upon 
the  river  than  before  the  change,  and  the  use  after  the  change 
is  in  all  ways  measured  and  fixed  (where  it  conflicts  with  exist- 


12  Head  v.  Hale,  38  Mont.  302,  100 
Pac.  222. 

13  Davis  v.  Chamberlain,  51  Or.  304, 
98  Pac.  154. 

14  Windsor  Beservoir  &  Canal  Co.  v. 
Lake  Supply  Ditch  Co.,  44  Colo.  214, 
98  Pac.  729. 

15  Bates  v.  Hall,  44  Colo.  360,  98 
Pac.  3.     Subsequent  appropriator  pro- 
tected against  change  by  prior.     Smith 
v.  Duff  (1909),  39  Mont.  382,  133  Am. 
St.  Eep.  587,  102  Pac.  984. 

i  The  Oregon  court  lays  down  the 
law  in  several  recent  cases.  "Altnow's 
position  is  that  he  is  entitled  to  use 
the  entire  amount  of  water  appropri- 
ated by  him,  if  he  needs  that  amount, 
'anywhere,  for  any  purpose,  without 
reference  to  anyone  else,  and  irrespec- 
tive of  that  use  upon  others.'  In  other 
words,  his  claim  seems  to  be  that  by 
his  appropriation  he  acquired  a  prior 
right  to  the  amount  of  water  ap- 
propriated by  him,  and  is  entitled  to 
use  it  at  any  time  or  place,  provided 
he  needs  it  and  puts  it  to  a  beneficial 
use.  But  this  is  not  the  law  as  we 
understand  it,  if  the  contemplated 
change  in  the  use  will  injuriously  af- 
fect rights  which  have  been  lawfully 
acquired  subsequent  to  his  appropria- 
tion." Williams  v.  Altnow,  51  Or.  275, 
95  Pac.  200,  97  Pac.  539.  And  in  an- 
other case:  "The  parties  hereto  are 


each  limited,  in  the  application  of  the 
water  adjudged  to  them,  to  the  specific 
tracts  upon  which  it  has  heretofore 
been  applied,  except  in  such  instances 
as  where  it  may  be  practicable  to 
change  the  place  of  use  without  sub- 
stantial injury  to  others  whose  rights 
are  here  determined;  that  is  to  say,  if 
by  changing  the  place  of  use,  when 
the  water  is  needed  by  others,  the 
quantity  returning  to  the  stream  after, 
changing  the  place  of  use  as  com- 
pared to  its  previous  application  is 
substantially  diminished,  or  if,  by  rea- 
son of  such  change,  the  'run  off'  re- 
verts to  the  stream  or  channel  below 
the  point  diverted  by  another,  thereby 
reducing  the  supply  at  such  point,  it 
must  necessarily  operate  to  the  injury 
of  the  rights  of  such  other  party,  and 
the  change  must  not  be  permitted." 
Hough  v.  Porter,  51  Or.  318,  95  Pac. 
732,  98  Pac.  1083,  102  Pac.  728,  citing 
Wiel  on  Water  Rights,  2d  ed.,  sec.  47} 
Williams  v.  Altnow,  51  Or.  275,  95 
Pac.  200,  97  Pac.  539.  "While  well 
settled  that  a  change  of  use  and 
place  of  use  of  water  by  an  appro- 
priator may  in  some  instances  be  per- 
mitted, such  risrht  is  always  limited  to 
changes  that  do  not  impair  the  rights 
of  others  interested  in  the  water  of  the 
stream."  Hough  v.  Porter,  supra. 


534  (3d  ed.)    Pt.  III.     THE  LAW  OF  PEIOE  APPROPRIATION.          §  498 

ing  owners)  by  the  same  limitations  which  the  law  would  impose 
upon  its  use  before  the  change.2  The  mere  fact  of  use  of  more 
land  does  not  show  the  inhibited  injury  to  others,  however,  since 
consistent  with  a  more  efficient  use  of  the  same  amount  of  water/5 

The  consent  of  the  party  injured  will  remove  the  objection.4 
The  burden  of  showing  that  the  change  injures  others  is  upon 
those  opposing  the  change.5  The  person  injured  must  be  a  party 
to  the  suit  to  make  the  point  material.  An  injury  to  strangers 
to  the  suit,  such  as  other  water  users  at  points  intermediate  on 
the  stream  between  the  old  and  new  places  of  diversion  or  use, 
cannot  be  considered.6 

The  limitation  against  injury  to  others  has  now  universally 
passed. into  statutes  in  all  States;  for  example,  in  sections  1412, 
1415  of  the  California  Civil  Code,  where  changes  are  authorized 
"if  others  are  not  injured  by  such  change."  The  limitation  is 
taken  from  the  original  cases  of  Maeris  v.  Bicknell  and  Kidd  v. 
Laird,  above  referred  to. 

In  applying  the  limitation  thus  generally  stated,  that  no  rights 
existing  at  the  time  the  change  is  made  must  be  infringed,  the  rights 
contemplated  by  the  rule  are  those  of  other  owners  of  the  natural 
resource,  appropriators  on  the  same  natural  stream.  Does  it  apply 
to  the  claims  (which  are  bare  claims  and  cannot  ripen  into  a  right) 

2  Seven  Lakes  etc.  Co.  v.  New  Love-      Platte  Valley  Irr.  Co.  v.  Central  Trust 
land  etc.  Co.,  40  Colo.  382,  93  Pac.  485,      Co.,   32   Colo.   102,   75   Pac.   391 ;    Ft. 
17  L.  R.  A.,  N.  S.,  329.    In  a  Colorado      Lyon  Canal  Co.  v.  Chew,  33  Colo.  392, 

'case  (Baer  etc.  Co.  v.  Wilson,  38  Colo.  81  Pac.  37;  Cache  La  Poudre  I.  Co.  v. 
101,  88  Pac.  265)  :  "If  appellant  was  L.  &  W.  R.  Co.,  25  Colo.  144,  71  Am. 
the  only  appropriator,  it  would  have  St.  Rep.  123,  53  Pac.  318.  And  say- 
the  right  to  change  the  point  of  di-  ing:  "The  mere  fact  that  it  is  the  in- 
version or  place  of  use  of  the  water  as  tention  of  appellee  to  apply  the  water, 
frequently  as  desired,  because  there  diverted  from  its  original  headgate 
would  be  none  having  rights  which  into  the  new  headgate  and  new  ditch, 
might  be  affected;  but,  when  a  subse-  upon  a  larger  acreage,  does  not  even 
quent  appropriator  makes  his  diversion,  presumptively'  establish  that  more 
he  acts  under  the  belief  that  the  water  water,  measured  in  time  or  quantity, 
appropriated  by  his  senior  will  con-  will  be  used  than  was  diverted  through 
tinue  to  be  used  as  it  was  at  the  time  the  original  headgate,  nor  will  it  pre- 
«f  the  making  of  the.  appropriation  of  sumptively  establish  injury  to  the  vest- 
the  junior-.  So  a  subsequent  appro-  ed  rights  of  others." 
nriator  has  a  vested  right  as  against  4  Crescent  etc.  Co.  v.  Montgomery, 
liis  senior  to  insist  upon  the  continu-  143  Cal.  248,  76  Pac.  1032,  65  L.  R.  A. 
ance  of  the  conditions  that  existed  at  940.  Consent  to  change  point  of  (li- 
the time  he  made  his  appropriation."  version.  Miller  v.  Douglas,  7'Ariz.  41, 
(Citing  Handy  Ditch  Co.  v.  Louden  60  Pac.  722;  Bates  v.  Hall,  44  Colo. 
Canal  Co.,  27  Colo.  515,  62  Pac.  847.)  360,  98  Pac.  3;  Saunders  v.  Robison, 
See,  also,  Windsor  Co.  v.  Hoffman  Co.  14  Idaho,  770,  95  Pae.  1057. 
(Colo.),  109  Pac.  423.  5  Jacob  v.  Lorenz,  98  Cal.  332,  33 

3  Fulton  etc.  Co.  v.  Meadow  etc.  Co.,  Pac.  119. 

35    Colo.    588,    86    Pac.    748.      Citing          6  Infra,  sec.  626  et  seq. 


§  499  Ch.  22.     CHANGE  OF  MODE  OF  ENJOYMENT.     (3d  ed.)  535 

of  those  using  the  waste  discharge  from  ditches  or  other  artificial 
watercourses,  at  a  distance  from  streams,  without  owning  rights  in 
the  natural  resource  itself,  from  which  the  supply  comes  ?  This 
is  a  matter  of  much  difficulty  in  the  philosophy  of  the  law 
of  watercourses — the  distinction  between  the  natural  resource  and 
artificial  flows  of  water — and  reference  in  regard  thereto  is  made 
to  a  previous  chapter.7 

(3d  ed.) 

§  499.  Right  of  Change  Chiefly  a  Matter  upon  Public  Lands.— 
These  rules,  having  arisen  with  the  doctrine  of  appropriation 
itself,  must  be  understood  in  the  light  of  the  origin  of  that  doc- 
trine, as  having  arisen  upon  the  public  domain.  When  the 
region  is  a  new  one,  and  the  lands  are  largely  public,  and  there 
are  few  appropriators  of  water,  there  is  practically  no  one  to 
be  injured.  The  government  is  alone  concerned,  and  under  the 
act  of  1866  acquiesces  in  the  utmost  freedom  to  the  appropriator 
so  far  as  the  government  is  concerned  (the  doctrine  of  "free 
development");1  and  the  only  question  being  as  to  continuance 
of  the  right,  the  right  continues  and  its  priority  is  not  lost  by 
the  change.  But  as  the  lands  become  settled  and  appropriations 
also  increase,  the  government  is  no  longer  the  only  one  concerned. 
Private  rights  of  others  are  now  also  concerned.  Hence,  while  in 
the  early  days  the  chief  consideration  was  the  freedom  of  change 
without  loss  of  priority,  in  latter  days  tke  prohibition  of  injury 
is  becoming  the  more  important ;  as  settlement  advances,  will 
become  the  most  important,  and  in  time  practically  prohibit 
change  altogether. 

The  prohibition  of  injury  (so  far,  at  least,  as  concerns  ditches, 
point  of  diversion  and  means  of  use)  practically  limits  changes 
to  acts  done  on  land  that  is  public  land  at  the  time  of  the  change. 
It  is  an  instance  of  the  philosophy  of  the  doctrine  of  appropria- 
tion as  it  arose  (and  is  still  applied)  in  California,  wholly  con- 
fined to  the  public  land.  Under  the  Colorado  doctrine,  which 
departed  from  this  rationale,  the  limitation  against  injury  to 
private  landowners  was  at  first  also  departed  from.1*  It  was 
afterward  restored  (in  all  matters  except  only  as  to  riparian 
right  to  the  water  itself,  which  Colorado  does  not  recognize). 

7  Supra,  sec.  51  et  seq.,  especially          1  Supra,  sec.  88  et  seq. 
eec.  61.  U  Supra,  c.  10. 


536  (3d  ed.)    Pt.  III.     THE  LAW  OF  PRICE  APPROPRIATION.          §  500 

Changes-  of  ditches,  point  of  diversion  or  means  of  use,  any 
change  which  injures  existing  landowners  or  existing  appro- 
priators,  is  not  to-day  allowed  anywhere  in  the  West.  No  change 
whatever  can  be  made  on  land  passed  into  private  hands  at  the 
time  of  or  subsequent  to  the  appropriation,  so  far  as  such  acts 
change  the  character  of  the  servitude,  and  this  practically  pro- 
hibits any  change  of  ditches  or  other  works  on  such  land  at  all.2 
Likewise,  no  change  which  (under  the  California  doctrine) 
increases  the  interference  with  riparian  water-rights  of  subse- 
quent patentees ; 3  nor,  under  any  doctrine,  which  interferes  with 
any  existing  appropriator,  subsequent  or  prior  in  time  of  use. 
They  have  acquired  vested  rights  in  the  stream  or  neighboring 
land  which  receive  full  protection  against  later  acts  of  the  prior 
appropriator. 

The  landowner  need  show  no  damage  from  the  change;  it 
is  enough  to  constitute  an  injury,  or  infringement  of  right, 
that  the  character  of  the  servitude  will  be  changed.  Injunc- 
tion will  be  granted  without  a  showing  of  damage,  because 
it  is  a  violation  of  right  of  ownership  of  the  land.4  "Much 
reliance  appears  to  be  placed  upon  the  fact  that  it  was  not  shown 
that  there  was  any  appreciable  value  to  the  land  appropriated 
for  the  ditch  [newly  substituted  for  a  flume].  This  is  entirely 
immaterial.  It  was  plaintiff's  land,  however  poor  it  might  be, 
and  the  fact  that  it  apparently  has  no  great  present  value  will 
not  justify  one  who  has  no  legal  right  thereto  in  appropriating 
the  same.  ....  There  can  be  nothing  in  the  contention  that, 
because  defendants  acquired  their  right  of  way  over  public 
unoccupied  lands  of  the  United  States,  they  have  the  right,  as 
against  one  ^acquiring  the  land  from  the  government  subject  to 
their  easement,  to  change  the  location  thereof  upon  his  land. 
He  took  his  land  subject  only  to.the  right  of  way  as  thus  located."  5 

(3d  ed.) 

§  500.    Freedom  of  Change   Gradually  Passing  Away. — The 

prohibition    of    injury    is    rapidly    overshadowing    the    right    of 

2  Supra,  sec.  221  et  seq.,  appropria-  4  The  doctrine  of  injuria  sine  damno. 
tion  on  private  land;   infra,  sec.  501       See  infra,  sec.  642. 

et  seq.,  changes  of  ditches.  5  Vestal  v.  Young,  147  Cal.  721,  82 

3  Supra,  sec.  257.     As  against  set-  Pac.   383 ;    citing  McGuire   v.   Brown, 
tiers  prior  in  settlement  to  the  appro-  106  Cal.  660,  39  Pac.  1060,  30  L.  R.  A., 
priation  it  cannot  exist  at  all  in  Call-  N.  S.,  384. 

fornia.  Ibid. 


§  500  Ch.  22.     CHANGE  OF  MODE  OF  ENJOYMENT.     (3d  ed.)  537 

change,  as  the  lands  pass  into  private  hands,  and  the  United 
States  withdraws  lands  that  remain  public.  The  right  of  change 
was  chiefly  an  instance  of  the  freedom  of  the  public  domain  exer- 
cised in  pioneer  days ;  and  to-day,  under  the  policy  of  conservation, 
changes  even  on  public  land  are  prohibited  except  by  special 
permit,  just  as  the  acquisition  of  new  rights  of  way.6 

A  further  force  is  the  modification  which  the  law  of  appropria- 
tion as  a  whole  is  undergoing  within  itself.7  As  this  book  has 
endeavored  to  keep  steadily  before  the  reader,  the  law  of  appro- 
priation, having  arisen  as  a  possessory  right  upon  the  public  domain 
(converted  into  a  freehold  by  the  act  of  1866),  took  on  the 
features  of  a  system  based  upon  the  idea  of  possession  of  the 
stream,  more  than  of  any  specific  use  made.  Actual  diversion 
(taking  possession)  created  the  right;  capacity  of  ditch  (the 
amount  in  possession)  measured  the  right;  voluntary  abandon- 
ment (intentional  relinquishment  of  possession)  alone  caused  a 
loss  of  right.  Use  was  represented  by  the  requisite  of  bona  fide 
intention,  and  nonuse  was  represented  by  being  merely  evidence  of 
an  intention  to  abandon  possession.  Coming  to  the  matter  of  this 
chapter,  the  possession  could  be  carried'and  changed  from  place  to 
place,  or  from  purpose  to  purpose,  or  the  point  of  diversion 
shifted  up  or  down  stream,  without  losing  priority  if  no  one  was 
injured.  The  rule  permitting  changes  is  but  one  instance  of  the 
possessory  origin  of  the  law  of  appropriation,  and  is  being  af- 
fected by  the  general  transition  in  the  law  of  appropriation  from 
a  possessory  to  a  specific  use  system.  *  In  this  change,  actual 
diversion  has  been  much  displaced  by  actual  use  as  the  crea- 
tion of  the  right;  capacity  of  ditch  has  almost  wholly  disappeared 
as  a  measure  of  the  right ;  intentional  abandonment  is  being  steadily 
displaced  by  nonuse  as  per  se  causing  loss  of  right ;  and  recent 
legislation  is  being  directed  against  changes,  and  making  the  right 
inhere  inseparably  in  the  initial  mode  of  use,8  or  else  permitting 
change  but  only  after  a  hearing  in  court  or  with  consent  of  the 
State  Engineer,  which  is  to  be  given  sparingly,  as  below  considered. 

6  Sierra  Buttes  Co.  (Nov.  19,  1909),  8  In  1909  it  was  enacted  in  Wyo- 

38  Land 'Dec.  .     See  supra,  sec.       ming:   "Water-rights    cannot    be    de- 

.,,n     ,  tached  •  from   the  lands,  place  or  pur- 

pose for  which  they  are  acquired,  with- 

7  See    cross-references    supra,    sec.       out    ioss    Of    priority."     Wyo.    Laws 
139.  1909,  c.  68,  sec.  1. 


538  (3ded.)    Pt.  III.    THE  LAW  OF  PEIOE  APPEOPEIATION.    §§501,502 

B.     CHANGE  OF  MEANS  OF  USE. 

(3d  ed.) 

§  501.  Change  of  Ditches,  etc. — It  has  been  said  that  the  ap- 
propriator  may  use  the  water  in  any  manner  necessary  to  carry 
out  the  use  for  which  it  was  appropriated.9  In  all  branches  of 
the  law  of  waters  it  is  immaterial  whether  the  use  is  in  steam 
boilers,  by  hydraulic  rams-,  in  flumes  or  pipes,  or  appliances  of 
whatever  kind.10  The  means  of  use  may  be  changed  so  long  as 
no  one  is  injured  in  making  the  change.  That  is,  the  priority  is 
not  lost;  and  whether  the  change  can  be  made  rests  on  whether 
the  acts  done  in  making  it  would  be  lawful  under  the  general 
law,  if  done  in  any  other  connection. 

Where  no  injury  to  others,  the  change  may  be  made  without 
loss  of  priority.  A  change  in  a  dam  is  permissible  of  no  injury 
to  others,11  and  a  new  ditch  may  be  substituted  for  an  old  one 
if  exactly  similar  and  in  the  same  position  and  no  damage 
results.12  A  change  may  be  made  from  a  stream  diversion  to 
well  pumping  if  without  injury  to  others,13  or  from  a  ditch  to 
a  natural  depression.14 

The  ditch  owner  has  a  right  generally  to  keep  his  works  in 
repair.1 


15 


(3d'ed.) 

§  502.  Same. — The  point  being  an  illustration  of  the  principle 
that  the  law  of  appropriation  was  framed  for  the  public  lands 
(where,  hitherto,  the  United  States  permitted  absolute  freedom 
under  the  act  of  1866), 16  the  appropriator,  in  making  his  change, 
must  in  no  way  impinge  upon  lands  or  rights  already  in  private 
ownership. 

9  Stone  v.  Bumpus,  46  Cal.  218,  4  Kiverside  Co.,  155  Cal.  509,  101  Pac. 

Morr.  Min.  Eep.  278;  Abbott  v.  Pond,  790,  23  L.  E.  A.,  N.  S.,  331;  Perry  v. 

142  Cal.  393,  76  Pac.  60;   Thomas  v.  Calkins   (Cal.),  113  Pac.  136. 

Guiraud,  6  Colo.  533.  14  Parties  owning  the  right  to  the 

>o  Charnock   v.   Higuerra,   111   Cal.  use  of  water  may  change  the  method 

473,  52  Am.  St.  Eep.  195,  44  Pac.  171,  of  conveying  it  to  the  point  of  use,  if 

32  L.  E.  A.  190;  Coleman  v.  Le  Franc,  such  change  does  not  materially  preju- 

137  Cal.  214,  69  Pac.  1011;  Miller  etc.  dice  others'   rights;   and  in  doing  so 

v.  Eickey,   127  Fed.   573;    Thomas   y.  any   dry  ravine,   gulch,   or  hollow,  as 

Guiraud,  6  Colo.  530 ;  Pomeroy  on  Ei-  well  as  the  natural  channel  <jf  a  stream, 

parian  Eights,  sec.  50;  Cal.  Civ.  Code,  may  be  used  by  the  appropriator  of 

sec.  1415.  water  in  its  transmission  to  the  place 

11  Seweard   v.   Pacific   etc.   Co.,   49  of  use.     Hough  v.  Porter,  51  Or.  318, 
Or.  157,  88  Pac.  963.  95  Pae.  732,  98  Pac.  1083,  102  Pac. 

12  Greer  v.  Heiser,  16  Colo.  306,  26  728. 

Pac.  770.  15  Supra,  sec.  460;  infra,  sec.  657. 

13  Hudson  v.  Dailey,  156  Cal.  617,          16  Supra,  sees.  92,  198. 
105   Pac.    748.      See,   also,   Barton   v. 


§  £ 02  Ch.  22.     CHANGE  OF  MODE  OF  ENJOYMENT.     (3d  cd.)  539 

The  matter  is  the  same  as  that  fully  considered  in  discussing 
whether  an  appropriation  can  be  made  on  private  land,17  and 
need  not  be  here  further  considered  than  to  say  that,  while  the 
Colorado  doctrine  allows  such  appropriation  and  change  as 
against  any  landowner  claim  (riparian  right)  to  the  wafer  on  the 
land,18  all  jurisdictions  to-day  deny  it  as  against  the  landowner's 
right  in  the  land  itself,19  and  the  result  is  practically  that  no  change 
of  means  of  use  can  be  made  on  private  land  at  all  against  the 
landowner's  opposition,  even  though  the  land  was  public  when 
the  ditch  was  originally  built.  ,  Statutes  allowing  changes  on 
private  land  even  against  the  will  of  the  landowner  must  be 
framed  on  the  lines  of  condemnation  under  the  power  of 
eminent  domain,  on  due  notice  and  compensation.20 

As  the  right  to  the  ditch  or  other  artificial  watercourse  is  an 
easement,  no  change  can  be  made  against  the  landowner  over 
whose  land  the  ditch  passes  that  is  burdensome  to  the  servient 
tenement,  or  that  changes  the  character  of  the  servitude;  such 
as  moving  a  ditch  to  a  new  place,  or  enlarging  it.21  Even  if  the 
enlargement  or  change  would  benefit  the  servient  estate,  the 
owner  thereof  has  a  right  to  be  his  own  judge  of  whether  he 
will  permit  it.22  At  the  present  day  it  is  important  to  note  that 
consequently  a  ditch  cannot  be  changed  to  a  pipe-line,  because 
it  is  held  to  be  a  material  change  in  the  character  of  the  servi- 
tude.23 In  a  case  decided  by  the  supreme  court  of  California M 
it  is  said  by  Mr.  Justice  Angellottif  "We  need  not  here  discuss 
the  question  as  to  whether  defendants  might  lawfully  have  con- 
structed a  ditch  of  the  same  size  as  their  flume  along  their  flume 
line.25  They  constructed  this  ditch  upon  another  line,  and  for 

17  Supra,  sec.  221  et  seq.  181  Fed.  62 ;  Welty  v.  Gibson,  42  Colo. 

18  Supra,  sec.  118.  18,  93  Pac.  1093. 

is  Supra,  sec.  221.  And  cases  cited  supra,  sec.  221  et 

20  See  chapter  on  eminent  domain,  seq.    Appropriation  on  private  land. 
infra,  sec.  604  et  seq.  22  Oabu   etc.  Co.  v.  Armstrong,   18 

21  Burris  v.  People's  Ditch  Co.,  104  Hawaii,  258. 

Cal.  248,  37  Pac.  922;  Joseph  v.  Ager,  23  Allen  v.  San  Jose  Water  Co.,  92 

108   Cal.  517,  41  Pac.  422;   Jacob  v.  Cal.  138,  28  Pac.  215,  15  L.  R.  A.  93; 

Day,  111  Cal.  571,  44  Pac.  243 ;  North  Oliver  v.  Agasse,  132  Cal.  297,  64  Pac. 

Fork  etc.  Co.  v.  Edwards,  121  Cal.  662,  401.     Contra,  Bean  v.  Stoneman,  104 

54  Pac.  69 ;  Los  Angeles  v.  Pomeroy,  Cal.  49,  37  Pac.  777,  38  Pac.  39. 

125   Cal.   420,   58   Pac.   69;   Vestal  v.  24  Vestal  v.   loung,   147   Cal.   715, 

Yownjf,  147  Cal.  715,  721,  82  Pac.  381,  721,  82  Pac.  381,  383. 

383 ;  Kern  etc.  Co.  v.  Bakersfield,  151  25  Saying,   "See,   however,   Allen  T. 

Cal.  403,  90  Pac.  1052;  Colegrove  etc.  San  Jose  Land  &  Water  Co.,  92  Cal. 

Co.  v.  Hollywood,  151  Cal.  425,  90  Pac.  138,  28  Pac.  215,  15  L.  R.  A.  93;  Bar- 

1053,  13  L.  R.  A.,  N.  S.,  904;  Snyder  rows  v.  Fox,  98  Cal.  63,  66,  32  Pac. 

v.  Colorado  etc.  Co.  (Colo.  C.  C.  A.),  811." 


540  (3ded.)    Pt.  III.     THE  LAW  OF  PRIOR  APPROPRIATION.          §50,2 

this  purpose  they  appropriated  to  their  use  different  land  of 
plaintiff.  The  precise  location  of  the  right  of  way  had  been  as 
definitely  and  finally  fixed  by  the  acts  of  the  defendants  as  it 
would  have  been  had  the  metes  and  bounds  been  set  forth  in  an 
instrument  of  grant.1  Defendants  had  acquired  the  right  to 
that  precise  location  and  no  other.  The  remainder  of  plaintiff's 
land  was  his,  free  from  any  right  of  defendants.  We  know  of  no 
principle  of  law  that  would  warrant  defendants  in  subjecting, 
without  his  consent,  another  and  different  portion  of  his  land  to 
their  use,  even  although  they  abandoned  their  former  location. 
It  is  elementary  that  the  location  of  an  easement  of  this  character 
cannot  be  changed  by  either  party  without  the  other's  consent, 
after  it  has  once  been  finally  established,  whether  by  the  express 
terms  of  a  grant,  or  by  acts  of  the  parties  tantamount  in  their 
effect.2  The  granting  of  a  right  over  one  portion  of  a  person's 
land  gives  the  grantee  no  right  over  any  other  portion.  Where 
such  a  grantee  attempts  to  exercise  his  right  over  some  other 
portion,  by  subjecting  such  portion  to  his  use,  without  the  con- 
sent of  the  owner,  he  deprives  the  owner  of  the  free  use  and 
possession  thereof,  and  his  acts,  if  continued  the  requisite  time, 
will  ripen  into  an  easement,  and  the  owner  will  be  permanently 
deprived  of  his  property.  That  such  a  result  injuriously  affects 
the  rights  of  the  owner  cannot  well  be  questioned.  As  was  said 
in  Burris  v.  People's  Ditch  Oo. :  a  'It  is  well  settled  that  the  owner 
of  an  easement  cannot  change  its  character,  or  materially 
increase  the  burden  upon  the  servient  estate,  or  injuriously  affect 
the  rights  of  other  persons.'  It  is  entirely  immaterial  in  this 
connection  that  the  new  line  was  only  from  one  to  twenty  feet 
distant  from  the  old  line.  It  was  upon  property  of  plaintiff 
over  which  defendants  had  no  right  whatever,  and  the  principle 
is  the  same  as  if  the  new  line  had  been  hundreds  of  feet  from 
the  old  one."  A  later,  case  states  the  same  principle,  and  Mr. 
Justice  Sloss  says:  "The  laying  of  pipe  on  a  new  line,  or  the 
substitution  of  pipe  for  a  ditch  or  wooden  conduit,  or  for  pipe 
of  a  smaller  size,  was  therefore  not  authorized  by  the  mere  fact 
that  water  had  already  been  conducted  across  the  highway  in 
another  manner."4 

1  Saying,  "See  14  Cyc.  Law  &  Pr.,          3  104  Cal.  248,  37  Pac.  922. 

pp.  1161,  1205."  4  Oolegrove   etc.   Co.   v.   Hollywood, 

2  Saying,  "See  Jaqui  v.  Johnson,  27       151  Cal.  425,  90  Pac.  1053,  13  L.  E. 
N.  J.  Eq.  526,  552."  A.,  N.  S.,  904. 


§  503  Ch.  22.     CHANGE  OF  MODE  OF  ENJOYMENT.     (3d  ed.)   541 

As  against  persons  other  than  the  landowner  (that  is,  existing 
appropriators  of  water)  no  change  can  be  made  to  their  injury, 
either.  For  example,  reservoirs  cannot  be  added  to  an  irrigation 
system  if  thereby  other  appropriators  will  suffer  injury.5  Rais- 
ing a  dam  higher  is  not  within  an  appropriator's  right  against 
subsequent  appropriators.8 

(3d  ed.) 

§  503.  Same. — The  ditch-owner,  likewise,  cannot  be  forced 
to  make  a  change  by  the  landowner.  The  latter  cannot  force 
the  former  to  substitute  a  pipe-line  for  his  ditch,7  even  though 
the  pipe-line  would  be  a  more  efficient  way  of  handling  the 
water,  minimizing  loss  in  transmission.8 

In  this  connection  it  has  recently  been  said  in  Oregon  that 
while  old  methods  under  excessive  water  supply  enabled,  with  the 
aid  of  a  few  dams  in  the  channels  and  sloughs,  irrigation  with  little 
expense,  the  parties  must,  when  the  demand  for  water  increases, 
change  their  methods  of  application  and  use  of  the  water  by  the 
construction  of  ditches,  etc.,  to  avoid  the  waste.  The  wasteful 
methods  so  common  with  early  settlers  can,  under  the  light  most 
favorable  to  their  system  of  use,  be  deemed,  it  was  held,  only 
a  privilege  permitted  merely  because  it  could  be  exercised  with- 
out substantial  injury  to  anyone ;  and  no  right  to  such  methods  of 
rise  was  acquired  thereby.9  A  recent  Utah  case  rules  that  a  prior 
appropriator  of  a  lake  may  be  forced  to  change  his  works  so  as  to 
admit  a  later  taking  of  the  surplus  by  another.10  Likewise,  in  an- 
other case  u  it  was  held  that  an  appropriator  using  the  water  by 
current-wheels,  which  required  a  large  flowing  volume,  when  he 
could  get  the  same  power  by  wheels  of  a  different  type  requiring 
much  less  water,  could  be  forced  by  a  subsequent  claimant  to  make 
the  change,  or,  at  all  events,  could  get  no  relief  for  interference 
with  his  current-wheels.  The  real  tendency  of  these  decisions 
has  already  been  considered  elsewhere ; 12  they  represent,  in 
reality,  a  new  departure  in  the  law  of  appropriation. 

5  Colorado  etc.  Co.  v.  Larimer  etc.          8  Barrows   v.   Fox,   98   Cal.   63,   32 
Co.,   26   Colo.   47,   56  Pac.   185;    New      Pac.  811.      . 

Loveland  etc.  Co.  v.  Consolidated  etc.  9  Hough  v.  Porter,  51  Or.  318,  95 

Co.,  27  Colo.  525,  62  Pae.  366   52  L.  R.  Pac.  732,  98  Pae.'1083,  at  1102,  102 

A.  266;  Windsor  Res.  Co.  v.  Lake  Sup-  Pac.  728. 

ply  Co.,  44  Colo.  214,  98  Pac.  729.  10  Salt      Lake      City     v.     Gardner 

6  Greeley   etc.    Co.    v.   Von    Trotha  (Utah),  114  P*ac.  147. 

(Colo.),  108  Pac.  985.  u  Schodde  v.   Twin  Falls  etc.   Co., 

7  Gregory  v.  Nelson,  41  Cal.  278,  12       161  Fed.  43,  88  C.  C.  A.  207. 
Morr.  Min.  Rep.  124.  12  Supra,  sec.  310. 


542  (3d  ed.)    Pt.  III.     THE  LAW  OF  PRIOR  APPROPRIATION.          §  504 

Recent  statutes  contain  provisions  for  forcing  a  ditch  or  canal 
owner  to  change  his  ditch.13  To  some  extent,  such  statutes  must 
evidently  depend  for  their  validity  upon  condemnation  under 
the  power  of  eminent  domain,  after  hearing  and  compensation.14 
So,  to  some  extent,  must  the  foregoing  rulings,  as  is  recognized  in  the 
Utah  case  just  cited. 


C.     CHANGE  OF  POINT  OF  DIVERSION. 

(3d  ed.) 

§  504.  Change  of  Diversion. — A  change  of  point  of  diversion 
may  be  made  if  done  without  in  jury,  to  the  rights  of  others  (a 
question  of  fact) ,  otherwise  not.15 


13  A  common  provision  is  that,  for 
economy  of  supply,  one  may  be  forced 
by  the  water  officials  to  substitute  a 
flume  or  pipe  for  a  ditch.     E.  g.,  Wyo. 
Rev.   Stats.    930;    Or.   Stats.   1909,   c. 
216,  sec.  55;  Utah  Stats.  1911,  c.  104, 
p.  145,  sec.  10.     An  Idaho  statute  en- 
acts  that   one   may   change   another's 
lateral  from  one  place  on  one's  land  to 
another.     Idaho  Stats.  1907,  p.  237. 

14  Infra,  c.  26. 

is  Alaska. — Miocene  D.  Co.  v.  Cam- 
pion M.  Co.,  3  Alaska,  572. 

Arizona. — Miller  v.  Douglas,  7  Ariz. 
41,  60  Pac.  722. 

California. — Kidd  v.  Laird,  15  Cal. 
116,  76  Am.  Dec.  472,  4  Morr.  Min. 
Rep.  571,  is  the  leading  case.  The 
other  California  cases  are  cited  under 
"change  of  place  of  use,"  as  the  de- 
cisions have  usually  treated  the  two 
questions  together.  Civ.  Code,  1412, 
1415.  Compare  Barton  v.  Riverside 
Co.,  155  Cal.  509,  101  Pac.  790,  23  L. 
R.  A.,  N.  S.,  331,  percolating  waters. 

Colorado. — Bear  etc.  Co.  v.  Wilson, 
38  Colo.  101,  88  Pac.  265;  Wadsworth 
etc.  Co.  v.  Brown,  39  Colo.  57,  88  Pac. 
1060;  Crippen  v.  Glasgow,  38  Colo. 
104,  87  Pac.  1073;  Coffin  v.  Left  Hand 
Ditch  Co.,  6  Colo.  44.3;  Thomas  v. 
Guiraud,  6  Colo.  530 ;  Sieber  v.  Frink, 
7  Colo.  148,  2  Pac.  901 ;  Hammond  v. 
Rose,  11  Colo.  524,  7  Am.  St.  Rep.  258, 
19  Pac.  466;  Fuller  v.  Swan  River 
Min.  Co.,  12  Colo.  12,  19  Pac.  836,  16 
Morr.  Min.  Rep.  252 ;  Strickler  v.  Colo- 
rado Springs,  16  Colo.  61,  25  Am.  St. 
Rep.  245,  26  Pac.  313;*Greer  v.  Heiser, 
16  Colo.  306,  26  Pac.  770;  Wyatt  v. 
Larimer  etc.  Co.,  18  Colo.  298,  36  Am. 


St.  Rep.  280,  33  Pac.  144  (dictum); 
Nichols  v.  Mclntosh,  19  Colo.  22,  34 
Pac.  280;  Knowles  v.  Clear  Cr.  etc. 
Co.,  18  Colo.  209,  32  Pac.  279;  Cache 
La  Poudre  etc.  Co.  v.  Water  etc.  Co.,  25 
Colo.  161,  71  Am.  St.  Rep.  131,  53  Pac. 
331,  46  L.  R.  A.  175;  Handy  D.  Co.  v. 
Louden  I.  C.  Co.,  27  Colo.  515,  62  Pae. 
847;  New  Cache  La  Poudre  etc.  Co.  v. 
Water  etc.  Co.,  29  Colo.  469,  68  Pac. 
781;  Fluke  v.  Ford,  35  Colo.  112,  84 
Pac.  469 ;  Hallett  v.  Carpenter,  37 
Colo.  30,  86  Pac.  317;  New  Cache  etc. 
Co.  v.  Arthur  etc.  Co.,  37  Colo.  530,  87 
Pae.  799;  Robertson  v.  Wilmoth,  4"0 
Colo.  74,  90  Pac.  95;  Lower  Latham 
Co.  v.  Bijou  Co.,  41  Colo.  212,  93  Pac. 
483 ;  Diez  v.  Hartbauer,  46  Colo.  599, 
105  Pae.  868 ;  3  Mills'  Ann.  Stats.,  2d 
ed.,  sees.  2273d-2273f. 

Idaho. — Hill  v.  Standard  Min.  Co., 
12  Idaho,  223,  85  Pac.  907;  Walker  v. 
McGinness,  8  Idaho,  540,  69  Pac. 
1003;  Hard  v.  Boise  etc.  Co.,  9  Idaho, 
589,  76  Pae.  331,  65  L.  R.  A.  107. 

Montana. — Civ.  Code,  sec.  1882; 
Columbia  M.  Co.  v.  Holter,  1  Mont. 
296;  Alder  Gulch  etc.  Co.  v.  Hayes,  6 
Mont.  31,  9  Pac.  581;  Meagher  v. 
Hardenbrook,  11  Mont.  385,  28  Pac. 
451;  Middle  Cr.  D.  Co.  v.  Henry,  15 
Mont.  558,  39  Pac.  1054;  Hays  v.  Buz- 
ard,  31  Mont.  74,  77  Pac.  423;  Carl- 
son v.  City  of  Helena  (Mont.),  114 
Pac.  110. 

Nebraska. — Cobbey's  Ann.  Stats., 
sec.  6751;  Farmers'  etc.  Co.  v.  Gothen- 
burg etc.  Co.,  73  Neb.  223,  102  N.  W. 
487. 

Nevada—  Stats.  1907,  p.  30;  Smith 
v.  Logan,  18  Nev.  149,  1  Pac.  678; 


§  505  Ch.  22.     CHANGE  OF  MODE  OF  ENJOYMENT.     (3d  ed.)   543 

Whether  the  use  is  for  mining  or  agriculture,  the  rule  is  the 
same.16 

The  appropriator  may  have  a  double  point  of  diversion.  He 
may  use  a  main  flume  and  a  branch  flume  above,  as  his  business 
requires,  sometimes  diverting  the  water  by  one,  and  sometimes  by 
the 'other.17  An  appropriator  having  rights  on  two  creeks  can- 
not be  required  to  exhaust  his  rights  on  one  before  using  the 
other.18 

(3d  ed.) 

§  505.  Same. — The  point  of  diversion  cannot  be  changed  if 
the  change  will  injure  others.19  Subsequent  appropriators  are 
entitled  to  as  much  protection  against  change  in  point  of  diversion 
by  others  as  are  prior  appropriators.20  In  the  case  just  cited, 
the  right  to  change  the  point  of  diversion  two  miles  and  a 
quarter  up  creek  was  refused.  In  one  case  it  is  said:21  "This 
court  has  repeatedly  held  that  an  appropriator  could  not  change 
his  place  of  diversion  of  the  waters  of  any  stream,  if  such  change- 
in  any  manner  affected  a  lower  appropriator  of  the  waters  of 
such  stream,  even  though  the  lower  appropriator  be  subsequent 
in  right.  The  reasons  of  such  conclusion,  it  seemj  to  us,  are  well 
founded.  Where  the  lower  appropriator  makes  his  appropria- 
tion, he  has  the  right  to  assume  -  the  upper  appropriator  will 
continue  the  use  of  the  water  as  he  found  it,  and  if  any  change 

Barnes  v.  Sabron,  10  Nev.  217,  4  is  Norman  v.  Corbley,  32  Mont.  195, 

Morr.  Min.  Eep.  673.  79  Pac.  1059. 

Oregon, — Tolman  v.  Casey,  15  Or.  In  Utah  a  statute  provides  that 

83,  13  Pae.  669;  Cole  v.  Logan,  24  Or.  storage  in  reservoir  shall  be  regarded 

304,  33  Pac.  568;  Bolter  v.  Garrett,  44  as  a  diversion,  and  the  points  of  di- 

Or.  304,  75  Pac.  142 ;  Williams  v.  Alt-  version  include  point  where  water  is 

now,  51  Or.  275,  95  Pac.  200,  97  Pae.  taken  from  the  stream,  and  the  center 

539;  Whited  v.  Cavin  (Or.),  105  Pae.  of  the  dam.  Utah  Comp.  Laws  1907, 

396.  sec.  1288x6,  and  1909,  c.  62,  p.  84. 

Utah. — Hague  v.  Nephi  Irr.  Co.',  16  19  Cases  in  preceding  list.  Walker 

Utah,  421,  67  Am.  St.  Rep.  634,  52  v.  McGinness,  8  Idaho,  540,  69  Pac. 

Pac.  765,  41  L.  R.  A.  311.  1003 ;  Columbia  Min.  Co.  v.  Holter,  1 

Statutes  to  this  effect  are  cited  un-  Mont.  296,  2  Morr.  Min.  Rep.  14; 

der  change  of  place  of  use,  infra,  since  Whited  v.  Cavin  (Or.),  105  Pac.  396; 

the  statutes,  like  the  decisions,  usually  Vogel  v.  Minnesota  etc.  Co.,  47  Colo, 

consider  the  two  questions  together.  534,  107  Pac.  1108;  Montpelier  Co.  v. 

16  Fuller  v.   Swan  R.  Co.,   12   Colo.  Momtpelier  (Idaho),  113  Pac.  741  (cit- 
12,  19  Pac.  836,   16  Morr.  Min.  Rep.  ing  the  second  edition  of  this  book), 
252 ;  Strickler  v.  Colorado  Springs,  16  2°  Baer  etc.  Co.  v.  Wilson,  38  Colo. 
Colo.  68,  25  Am.  St.  Rep.  245,  26  Pae.  101,  88  Pac.  265. 

313.  21  Hill    v.    Standard    Min.    Co.,    12 

17  Hobart  v.  Wicks,  15  Nev.  418,  2      Idaho,  223,  85  Pac.  907. 
Morr.  Min.  Rep.  1. 


544  (3d  ed.)    Pt.  III.     THE  LAW  OF  PRICE  APPROPRIATION.          §  506 


would  damage  him  in  the  use  of  his  appropriation,  the  courts 
will  protect  him  in  his  rights. ' ' 22 

Just  as  previously  pointed  out,  the  rule  permitting  change  of 
point  of  diversion  arose  on  the  public  domain  in  the  early  days, 
there  being  few  private  land  or  water  users  in  existence  to  be 
injured.  The  United  States,  as  to  public  land,  allowed*  the 
utmost  freedom,  and  the  limitation  against  injury  was  less 
important  than  the  right  to  make  a  change;  while  to-day  the 
lands  and  waters  being  much  more  fully  taken  up  (and  the 
public  lands  reserved  and  withdrawn),  the  prohibition  of  injury 
to  others  is  the  more  important,  and  the  possibility  of  change 
is  becoming  less  and  less.  Just  as  in  regard  to  change  of  means 
of  use  already  considered,  the  point  of  diversion  cannot  be 
changed  against  the  landowner's  opposition*  when  the  land  on 
which  it  lies  has  passed  into  private  hands,  though  the  land- 
owner suffers  no  actual  damage;  it  is  enough  that  he  took  his 
land  subject  only  to  existing  conditions,  and  no  others.23  And 
likewise  upon  public  land  itself  the  United  States  to-day  is  either 
prohibiting  new  ditch  building,  or  greatly  restricting  it  by 
requiring  compliance  with  the  Federal  Right  of  Way  Acts  and 
the  rules  laid  down  by  the  Forest  Service.24 

(3d  ed.) 

§  506.  Statutory  Restrictions. — In  Colorado  25  there  is  a  special 
statutory  provision  1  which  requires  application  to  court  before 


22  The  rule  is  stated  in  Hargrave  v. 
Cook,  108  Cal.  72,  at  80,  41  Pac.  18, 
30  L.  R.  A.  390,  as  follows:  "He  may 
change  the  point  of  diversion  to  an- 
other place  upon  the  servient  tene- 
ment; he  is  nevertheless  limited  in  so 
doing  to  the  exigencies  of  the  situa- 
tion, and  has  no  right  to  make  such 
change  arbitrarily  and  at  will.  He 
may  do  so  when  under  certain  circum- 
stances it  is  required  to  enable  him  to 
take  the  amount  of  water  to  which  he 
has  ownership,  but  then  only  when 
'others  are  not  injured  by  the  change." 
(Citing  Civ.  Code,  see.  1412.)  His 
rights  are  the  rights  of  the  grantee  of 
an  easement,  and  extend,  in  the  matter 
of  changing  the  point  of  diversion,  no 
further  than  the  boundaries  of  the 
servient  tenement,  and  even  when  en- 
tering upon  this  he  is  under  obligation 
only  to  make  reasonable  changes  with 
reasonable  care,  and  also  to  repair,  so 


far  as  possible,  whatever  damage  his 
labors  may  have  occasioned.  (Citing 
Gale  and  Whately  on  Easements,  235.) 
As  to  lands  other  than  those  subject 
to  his  easement,  and  as  to  other  claim- 
ants and  owners,  he  can  make  no 
change  at  all  which  injuriously  affects 
them  or  their  rights." 

23  See  McGuire  v.  Brown,  106  Cal. 
660,  39  Pac.  1060,  30  L.  R.  A.  334; 
Vestal  v.  Young,  147  Cal.  715  and 
721,  82  Pac.  381,  383 ;  Snyder  v.  Colo- 
rado etc.  Co.  (C.  C.  A.  Colo.),  181 
Ted.  62;  Vogel  v.  Minnesota  etc.  Co., 
47  Colo.  534,  107  Pac.  1108. 

.24  Supra,  sees.  202,  204  et  seq.,  430 
et  seq. 

25  For  list  of  citations,  see  last 
section. 

i  3  M.  A!  S.,  1905  ed.,  2273d  et 
seq.;  Rev.  Stats.  1908,  sec.  3226  et 
seq.;  Laws  1903,  p.  278  et  seq. 


§  506  Ch.  22.     CHANGE  OF  MODE  OF  ENJOYMENT.     (3d  ed.)  545 

the  change  of  place  of  diversion  is  made,  and  is  based  on  analogy 
to  the  special  proceedings  for  the  adjudication  of  water-rights 
discussed  hereafter.2  This  statutory  procedure  governing  change 
in  point  of  diversion  has  been  upheld,3  even  as  to  rights  existing 
at  the  date  of  passage  of  the  act  or  in  course  at  that  time,  and 
is  not  unconstitutional  in  so  doing.4  The  procedure  for  change 
of  point  of  diversion  must  be  followed  before  the  change, 
though  made  before  the  act,  will  receive  legal  recognition,5  and 
is  not  unconstitutional  on  that  account.6  Under  it,  priority  of 
right  may  at  the  same  time  be  ascertained,  and  water-rights  set- 
tled in  the  same  proceeding.7  "Under  this  statute  we  consider 
it  necessary  that  a  petitioner  show  a  right  to  the  use  of  a  cer- 
tain quantity  of  water  from  a  public  stream  for  irrigation  as 
a  condition  precedent  to  obtaining  a  decree  permitting  a  change 
in  its  point  of  diversion.  To  decree  in  favor  of  such  change 
where  the  volume  is  not  fixed  would  probably  lead  to  useless 
litigation  between  riyal  claimants  and  the  water  commissioner."8 
But  in  a  proceeding  to  change  point  of  diversion  there  cannot  be 
decided,  it  has  been  held,  the  question  of  abandonment.9 

The  right  to  make  the  change  cannot  be  tested  in  different 
proceedings,  such  as  an  action  to  quiet  title,10  or  by  making  the 
change  and  then  seeking  to  enjoin  the  water  commissioner  from 
interfering.11  In  a  proceeding  by  a  landowner  to  change  his 
point  of  diversion  to  a  point  higher  up  on  the  stream,12  owners 
of  land  below  the  point  of  .the  original  intake  cannot  object  that 
the  owners  of  lands  between  the  old  and  new  point  of  diversion 
have  been  injuriously  affected  by  the  change.13  The  change  may 
be  decreed  from  one  district  to  another  district,  and  defendants 
will  not  be  heard  to  say  that  users  in  an  intervening  district, 

2  Infra,  sec.  1222  et  seq.  8  Bates  v.   Hall,   44  Colo.   360,  98 

3  New  Cache  La  Poudre  etc.  Co.  v.      Pac.  3. 

Water  Supply  etc.  Co.,  29  Colo.  469,  9  Lower  Latham  Co.  v.  Bijou  Co., 

68   Pac.   781.  41  Colo.  212,  93  Pac.  483. 

4  New  Cache  La  Poudre  etc.  Co.  v.  10  Fluke  v.  Ford,  35  Colo.  112,  84 
Water  Supply  etc.  Co.,   29  Colo.  469,  Pac.    469;    Williams    v.    Conroy,    36 
€8  Pac.  781;  Fluke  v.  Ford,  35  Colo.  Colo.    117,   83   Pac.    959. 

112,  84  Pac.  469.  n  New   Cache   La  Poudre   etc.   Co. 

5  New  Cache  La  Poudre  etc.  Co.  v.       v.   Arthur  etc.   Co.,   37   Colo.   530,   87 
Arthur  Irr.  Co.,  37  Colo.  530,  87  Pac.       Pac.    799. 

799 ;     Ashenfelter    v.     Carpenter,     37  12  As  authorized  by  Colorado  Laws 

Colo.   534,   87   Pac.   800.  of  1903,  p.  278. 

6  Ibid.  13  Crippen  v.  Glasgow,  38  Colo.  104, 

7  Hallet  v.  Carpenter,  37  Colo.  30,  87   Pac.   1073.     See  sec.  626  et  seq., 
86  Pac.  317.  infra. 

Water  Rights — 35 


546  (3d  ed.)    Pt.  III.     THE  LAW  OF  PRIOR  APPROPRIATION.          §  506 


strangers  to  the  action,  might  be  injured  thereby.14  The  Colorado 
statute 15  provides  that,  if  it  shall  appear  that  the  rights  of 
others  might  be  injuriously  affected,  the  court  shall  decree  the 
change  upon  terms  and  conditions  which  would  prevent  such 
injurious  effect.16  In  the  event  of  the  supply  of  water  becoming 
insufficient  to  supply  the  appropriation,  the  decree  permitting 
the  transfer  will  be  construed  as  permitting  only  such  portion 
of  the  appropriation  as  the  amount  transferred  bears  to  the 
whole.17  Where  a  water-right  is  under  executory  contract  of 
sale,  vendor  and  vendee  may  join  in  petition  to  change  point  of 
diversion.18 

In  a  proceeding  to  change  point  of  diversion,  it  is  held  that 
the  question  of  whether  the  times  of  use  claimed  by  the  changer 
in  his  old  position  will  be  injurious  to  others  in  his  new  one 
should  not  be  determined,  if  there  is  any  doubt  on  the  evidence. 
It  should  be  left  until  actual  controversy  upon  it  arises,  unless 
the  change  will  per  se  necessarily  have  an  injurious  result.19 

The  Colorado  procedure  for  changing  point  of  diversion  has 
for  its  object  to  allow  a  remedy  by  protests  in  advance  of 
injury.20  At  the  same  time,  if  the  decree  is  conclusive,  it  defeats 
the  remedy  where  the  injury  cannot  be  seen  in  advance.  ''The 


14  Lower  Latham  Co.  v.  Bijou  etc. 
Co.,  41  Colo.  212,  93  Pac.  483. 

15  Sess.  Laws  1903,  p.  278,  c.  124. 

16  See    Wadsworth    v.    Brown,    39 
Colo.  57,   88  Pac.   1060,  holding  that 
the  statutory  procedure  for  change  of 
point   of  diversion  applies  to  mutual 
ditch  companies. 

17  Hallet  v.  Carpenter,  37  Colo.  34, 
86  Pac.  317. 

18  Bates  v.  Hall,  44  Colo.  360,  98 
Pac.  3. 

19  Where  in  a  proceeding  to  change 
the  point  of  diversion  of  petitioners' 
water-rights,     petitioners     desired     to 
change,  not  only  the  point  of   diver- 
sion,  but   the    place    of   use,    and    to 
carry  the  volume  of  water  which  they 
claimed  to  own  through  a  new  ditch, 
and  for  the  irrigation  of  other  lands, 
and   to    fill   a   reservoir   four   or   five 
miles    beyond    the    lands,    to    irrigate 
which    the    appropriation    was    orig- 
inally   made,     respondents    were    en- 
titled to  show  the  changed  conditions 
affecting  them  which  would  ensue  if 
the  diversion  was  permitted,  and  also 


that  petitioners'  proposal  would  re- 
sult in  an  enlarged  use.  Bates  v. 
Hall,  44  Colo.  360,  98  Pac.  3,  say- 
ing: "In  New  Cache  etc.  Irr.  Co.  v. 
Water  S.  &  S.  Co.,  29  Colo.  469,  68 
Pac.  781,  we  said  that  it  was  not 
proper,  in  a  proceeding  to  change  the 
point  of  diversion,  to  go  into  the  ques- 
tion of  an  enlarged  use  which  the 
petitioner  might  make  of  the  water 
after  the  point  of  diversion  was 
changed;  but  this  was  immediately 
qualified  by  the  statement  that,  if  the 
evidence  showed  that  the  changed 
conditions  necessarily,  or  by  reason- 
able inference,  would  result  in  an  en- 
larged use,  the  petition  should  not  be 
granted.  In  the  light  of  the  offer 
made  by  -respondents  the  court  should 
have  permitted  pertinent  evidence,  if 
any,  to  show  that  the  proposed  change 
would  necessarily  cause  the  injury 
which  they  alleged  would  be  in- 
flicted." 

20  Crippen    v.    Glasgow,    38    Coto. 
104,  87  Pae.  1073. 


i  507  Ch.  22.     CHANGE  OF  MODE  OF  ENJOYMENT.     (3d  ed.)  547 

change  of  the  point  of  diversion  under  these  [Colorado]  statutes 
has  already  produced  considerable  litigation,  and  presents  most 
interesting  and  important  questions  for  solution."21  The  stat- 
ute is  strictly  remedial  only,  the  right  to  make  the  change  where 
others  are  not  injured  having  existed  in  Colorado,  as  elsewhere, 
long  before  the  passage  of  the  statute.22 

Reference  should  also  be  made  to  Part  VI  of  this  book  con- 
cerning the  Adjudication  of  Right . 

(3d  ed.) 

§  507.  Same. — Under  the  recent  water  codes,  the  appropria- 
tor  is  usually  required  by  statute  to  apply  to  the  State  Engineer 
for  a  permit  before  changing  the  point  of  diversion.  The  State 
Engineer  is  then  required  to  publish  nature  of  the  application 
and  to  hear  any  protests  or  contests  of  those  who  claim  they 
will  be  injured,  and  to  make  his  decision  accordingly.23  A 
statute  requiring  the  appropriator  to  obtain  the  permission  of 
the  Board  of  Irrigation  before  changing  place  of  diversion  or 
use  has  been  upheld  in  Nebraska.24 

The  difficulty  with  this  and  the  Colorado  statutory  procedure 
is  in  the  very  thing  they  seek  to  accomplish,  viz.,  a  determina- 
tion in  advance  of  the  change.  Such,  however,  owing  to  the 
lack  in  men  of  even  the  highest  training  of  the  gift  of  prophecy, 
is  bound,  in  some  cases,  to  turn  out  impossible.  When  the  State 
Engineer  has  issued  the  permit  for  the  change,  and  it  turns  out 
that  he  erred  in  thinking  no  one  would  be  injured,  then  recourse 
must  be  open  to  the  courts  to  protect  the  injured  party,  as  the 
only  way  of  holding  the  statute  constitutional.25 

This  new  legislation  is  an  instance  of  the  change  now  going 
on  in  the  law  of  appropriation  from  a  possessory  to  a  specific 
use  system.  So  far,  the  above  statutes  accept  the  principle  of 
change,  but  restrict  its  exercise.  The  Wyoming  legislature  in 
1909  went  still  further,  and  prohibited  change  entirely.1 

21  Mills'   Irrigation  Manual,  p.   68.  25  Infra,  sees.  1193,  1194.     In  Utah 

22  Lower  Latham  etc.  Co.  v.  Bijou  Stats.     1909,   e.    62,   p.    84,   it   is   ex- 
etc.  Co.,  41  Colo.  212,  93  Pac.  483.  pressly    provided    that     approval    of 

23  References  to  these  statutes  will  change  does  not  impair  vested  rights, 
be  found  in  Part  VIII.  1  Stats.  1909,  c.  68,  see.  1. 

24  Farmers'  etc.  Co.  v.  Gothenberg 
etc.  Co.,  73  Neb.  223,  102  N.  W.  487. 


548  (3d  ed.)    Pt.  III.     THE  LAW  OF  PEIOE  APPROPRIATION. 


508 


D.     CHANGE  OF  PLACE  OF  USE. 

(3d  ed.) 

§  508.  Change  of  Place  of  Use. — The  place  of  use  may  be 
changed  if  others  are  not  thereby  injured.2  "The  person  entitled 
to  the  use  may  change  the  place  of  diversion,  if  others  are  not 


2  Arizona. — Biggs  v.  Utah  Irr.  Co., 
7  Ariz.  331,  64  Pac.  494. 

California. — The  following  decisions 
uphold  change  of  place  of  use,  and 
several  of  them  at  the  same  time  in- 
volve change  of  means,  and  purpose 
of  use,  and  change  of  point  of  diver- 
sion. Maeris  v.  Bicknell,  7  Cal.  261, 
68  Am.  Dee.  257,  1  Morr.  Min.  Rep. 
601;  Ortman  v.  Dixon,  13  Cal.  33; 
McDonald  v.  Bear  River  Co.,  13  Cal. 
220,  1  Morr.  Min.  Rep.  626;  Kidd  v. 
Laird,  15  Cal.  161,  72  Am.  Dec.  472, 
4  Morr.  Min.  Rep.  571 ;  McKinney  v. 
Smith,  21  Cal.  374,  1  Morr.  Min.  Rep. 
650;  Butte  Table  Mountain  Co.  v. 
Morgan,  19  Cal.  609,  4  Morr.  Min. 
Rep.  583;  Davis  v.  Gale,  32  Cal.  26, 
91  Am.  Dec.  554,  4  Morr.  Min.  Rep. 
604;  Junkans  v.  Bergin,  67  Cal.  267, 
7  Pac.  684;  Ware  v.  Walker,  70  Cal. 
591,  12  Pac.  475;  Ramel  v.  Irish,  96 
Cal.  214,  31  Pac.  41;  McGuire  v. 
Brown,  106  Cal.  660,  39  Pac.  1060, 
30  L.  R.  A.  384;  Hargrave  v.  Cook, 
108  Cal.  72,  41  Pac.  18,  30  L.  R.  A. 
390;  Charnock  v.  Higuerra,  111  Cal. 
473,  52  Am.  St.  Rep.  195,  44  Pac. 
171,  32  L.  R.  A.  190;  Santa  Paula 
etc.  Co.  v.  Peralta,  113  Cal.  38,  45 
Pac.  168;  Smith  v.  Corbit,  116  Cal. 
587,  48  Pac.  725;  San  Louis  etc.  Co. 
v.  Estrada,  117  Cal.  168,  48  Pac. 
1075 ;  Vineland  etc.  Co.  v.  Azusa  etc. 
Co.,  126' Cal.  486,  58  Pac.  1057,  46 
L.  R.  A.  820;  Byers  v.  Colonial  etc. 
Co.,  134  Cal.  553,  66  Pac.  732;  Craig 
v.  Crafton  etc.  Co.,  141  Cal.  178,  74 
Pac.  762;  Southern  Cal.  etc.  Co.  v. 
Wilshire,  144  Cal.  68,  at  72,  77  Pac. 
767;  Southside  etc.  Co.  v.  Burson, 
147  Cal.  401,  81  Pac.  1107;  Calkins  v. 
Sorosis  etc.  Co.,  150  Cal.  426,  88  Pac. 
1094;  Walnut  Irr.  Dist.  v.  Burke,  158 
Cal.  165-168,  110  Pac.  518. 

Colorado. — Coffin  v.  Left  Hand  D. 
Co.,  6  Colo.  443;  Thomas  v.  Guiraud, 
6  Colo.  530;  Hammond  v.  Rose,  11 
Colo.  524,  7  Am.  St.  Rep.  258,  19 
Pac.  466;  Fuller  v.  Swan  River  etc. 
Co.,  12  Colo.  12,  19  Pac.  836,  16 
Morr.  Min.  Rep.  252;  Strickler  v.  City 


Colo.  Springs,  16  Colo.  61,  25  Am. 
St.  Rep.  245,  2fi  Pac.  313:  Greer  v. 
Heiser,  16  Colo.  306,  26  Pac.  770; 
Wyatt  v.  Larimer  Co.,  18  Colo.  298, 
36  Am.  St.  Rep.  280,  33  Pac.  144; 
Oppenlander  v.  D.  Co.,  18  Colo.  142, 
31  Pac.  854;  Knowles  v.  Clear  Creek 
etc.  Co.,  18  Colo.  209,  32  Pac.  279; 
Larimer  Co.  v.  Cache  La  Poudre  Irr. 
Co.,  8  Colo.  App.  237,  45  Pac.  525; 
Cache  La  Poudre  Co.  v.  Water  Sup. 
Co.,  25  Colo.  161,  71  Am.  St.  Rep.  131, 
53  Pac.  331,  46  L.  R.  A.  175;  King 
v.  Ackroyd,  28  Colo.  488.  66  Pac.  906; 
City  of  Telluride  v.  Davis,  33  Colo. 
355,  108  Am.  St.  Rep.  101,  80  Pac. 
1051;  Town  of  Sterling  v.  Pawnee 
Co.,  42  Colo.  421,  94  Pr,c.  431,  15  L. 
R.  A.,  N.  S.,  238;  Diez  v.  Hartbauer, 
46  Colo.  599,  105  Pac.  868. 

Idaho. — Mahoney  v.  Neiswanger,  6 
Idaho,  750,  59  Pac.  561;  Hard  v. 
Boise  City  Irr.  &  L.  Co.,  9  Idaho,  589, 
76  Pac.  331,  65  L.  R.  A.  407;  Village 
of  Hailey  v.  Riley,  14  Idaho,  481,  95 
Pac.  686,  17  L.  R.  A.,  N.  S.,  86. 

Montana. — Civ.  Code,  sec.  1882; 
Woolman  v.  Garringer,  1  Mont.  535, 
1  Morr.  Min.  Rep.  675;  Meagber  v. 
Hardenbrook,  11  Mont.  385,  28  Pac. 
451;  Middle  Or.  D.  Co.  v.  Henry,  15 
Mont.  558,  39  Pac.  1054;  Gassert  v. 
Noyes,  18  Mont.  216,  44  Pac.  959; 
Power  v.  Switzer,  21  Mont.  523,  55 
Pae.  32;  Smith  v.  Denniff,  24  Mont. 
20,  81  Am.  St.  Rep.  408,  60  Pac.  398, 
50  L.  R.  A.  741;  Hays  v.  Buzard,  31 
Mont.  74,  77  Pac.  423. 

Nebraska. — Farmers'  Irr.  Co.  v. 
Gothenburg  Irr.  Co.,  73  Neb.  223,  102 
N.  W.  487. 

Nevada. — Smith  v.  Logan,  18  Nev. 
149,  1  Pac.  678;  Union  etc.  Co.  v. 
Dangberg,  81  Fed.  73. 

New  Mexico. — Trambley  v.  Luter- 
man,  6  N.  M.  15,  27  Pac.  312. 

Oregon. — Wimer  v.  Simmons,  27  Or. 
1,  50  Am.  St.  Rep.  685,  39  Pac.  6; 
Nevada  Ditch  Co.  v.  Bennett,  30  Or. 
59,  60  Am.  St.  Rep.  777,  45  Pac.  472; 
Hough  v.  Porter,  51  Or.  318,  95  Pac. 


§  508  Ch.  22.     CHANGE  OF  MODE  OF  ENJOYMENT.     (3d  ed.)  549 

injured  by  such  change,  and  may  extend  the  ditch,  flume,  pipe, 
or  aqueduct  by  which  the  diversion  is  made  to  places  beyond 
that  where  the  first  use  was  made."3 

The  change  may  be  from  one  portion  of  one's  land  to  another, 
as  well  as  to  different  land.4 

It  is  said  in  a  recent  case  in  Idaho:  ''There  is  no  statute  of 
the  United  States,  or  of  this  State,  which  prohibits  a  desert 
entryman  from  disposing  of  the  water  used  for  final  proof, 
separate  from  the  land,  after  proof  has  been  made.  When  the 
water  had  been  used  for  reclaiming  said  land,  and  final  proof 
of  the  same  had  been  submitted  to  the  government  and  patent 
issued  therefor,  the  entryman  had  complied  with  the  legal  require- 
ments prescribed  by  the  government,  and  took  title  to  his  land 
without  any  conditions  or  restrictions.  The  land  became  his 
property  to  dispose  of  as  he  might  see  fit,  either'  the  water  and 
the  land  together  or  separately.  In  the  case  of  Hard  v.  Boise 
City  Irrigation  &  Land  Co.,5  this  court  held  that  the  owner  of 
a  water-right,  by  purchase,  or  original  appropriation,  had  a  right 
to  dispose  of  the  same  and  sell  the  water  separate  and  apart 
from  the  land.  To  the  same  effect  is  Johnston  v.  Little  Horse 
Irr.  Co.6  If  this  be  a  correct  statement  of  the  law,  then  the 
trial  court  erred  in  its  conclusion  of  law,  to  the  effect  that  the 
water  applied  to  the  desert  entry  became  appurtenant  to  the  land 
and  inseparable  therefrom."7 

732,    98    Pac.    1083,    102    Pae.    728;  gation,     sees.     154,     156:     Gould     on 

Whited  v.  Gavin  (Or.),  105  Pac.  396.  Waters,    sec.    230;    17    Am.    &    Eng. 

Utah.— Elliott  v.  Whitmore  (Utah),  Eney.  of  Law,  485,  497. 

24     Pac.     673;     Patterson     v.     Ryan  It  may  be  interesting  to  note  that 

(Utah),  108  Pac.  1118.  in    Hawaii,   where    a    peculiar   system 

Washington.  —  Thorpe      v.      Tenem  of  its  own  prevails  concerning  waters, 

Ditch  Co.,  1  Wash.  566,  20  Pac.  588.  a  water-right  is  also  held  not  to  be 

Wyoming. — Willey    v.     Decker,     11  inseparable    from   the   land   on   which 

Wyo.  496,   100  Am.   St.  Rep.  939,  73  first  used.     Haw.  Com.  Co.  v.  Wailuku 

Pac.    210;    Johnston   v.   Little    Horse  Co,,  15  Hawaii,  611;  Lonoaea  v.  Wai- 

etc.   Co.,   13   Wyo.   208,   110   Am.   St.  luku   Co.,   9   Hawaii,   651. 

Rep.  986,  79  Pac.  22,  70  "L.  R.  A.  341.  3  Cal.  Civ.  Code,  sec.   1,412. 

Statutes. — These  rules  are   now  in-  4  Santa   Paula   etc.  Co.   v.  Peralta, 

corporated    in    Cal.    Civ.    Code,    sees.  113  Cal.  38,  45  Pac.  168. 

J412,  1415;  Wyo.  Stats.    1905,  p.  147;  59  Idaho,  589,  76  Pac.  331,  65  L. 

S.    D.    Stats.    1905,   p.    201,    sec.    48;  R.  A.  407. 

Okl.  Stats.   1905,  p.  274,  sec.   10;    N.  «  13   Wyo.   208,   110   Am.   St.   Rep. 

M.  Stats.  1905,  p.  270,  sec.  6;  and  the  986,  79  Pac.  22,  70  L.  R.  A.  341. 

statutes    of    other    States    generally.  7  Village    of    Hailey    v.    Riley,    14 

See  statutes  infra,  Part  VIII.  Idaho,  481,  95  Pac.  686,  17  L.  R.  A., 

See,    also,    Pomeroy     on     Riparian  N.  S.,  86. 
Rights,  sees.  46,  92;  Kinney  on  Irri- 


550  (3d  ed.)    Pt.  III.     THE  LAW  OF  PRIOR  APPROPRIATION.          §  509 

A  change  of  place  of  use  from  one  fork  to  another  fork  is  no 
injury  to  an  appropriator  below  the  junction  of  the  two  forks.8 

But  if  the  change  causes  injury  to  others,  it  cannot  be  made 
against  their  objection.  "Altnow's  appropriation  was  made  for 
the  purpose  of  irrigating  land  east  of  the  stream.  By  such 
appropriation  he  acquired  a  prior  right  to  water  sufficient  for 
that  purpose.  He  did  not,  however,  acquire  title  to  the  water, 
but  only  the  right  to  use  it  for  the  purposes  for  which  it  was 
appropriated.  When  not  needed  for  that  purpose,  it  was  subject 
to  appropriation  by  others,  and  he  cannot  subsequently  change 
or  enlarge  his  use  to  their  injury."9  Likewise  as  to  change  of 
place  of  storage.  "The  change  of  place  of  storage  or  use  from 
one  reservoir  to  another,  if  not  identical,  in  principle,  is 
analogous  to  a  change  of  place  of  use  of  irrigating  water  from 
one  tract  of  land  to  another,"  and  cannot  be  made  to  the  injury 
of  other  appropriators.10  That  the  change  will  not  be  permitted 
in  case  it  injures  others  is  involved  in  all  the  cases  cited  in  this 
chapter. 

The  court  may  permit  the  change  with  conditions  expressed 
in  the  decree  to  prevent  such  injury.11  Only  injured  parties 
may  object;  a  water  commissioner  cannot  refuse  to  give  water, 
on  his  own  motion,  because  of  the  change.12 

(3d  ed.) 

§  509.  Statutory  Restrictions. — This  rule  of  change  of  place  of 
use  arose  in  the  early  mining  days  upon  public  domain  where 
there  was  no  one  to  be  injured;  and  the  irrigation  engineers 
to-day  believe  it  unfortunate  in  its  application  to  irrigation 
under  conditions  of  rapid  settlement,  and  the  recent  water  codes 
contain  provisions  that  "the  right  to  the  use  of  water  for  irri- 
gation inheres  in  the  land  irrigated,"  and  make  the  appropria- 
tion inseparable  therefrom  (being  abandoned  when  no  longer 
there  used),  or  else  separable  only  after  application  to  the  State 
Engineer,  publication  of  notice,  protest  of  other  parties  concerned 

8  Saunders  v.  Robison,  14  Idaho,  10  Windsor  Co.  v.  Lake  Supply  Co. 
770.  95  Pac.  1057.  (1909),  44  Colo.  214,  98  Pac.  729. 

0  iTT.iv  tr-i    n      nvK  1]  Walnut  Irr.  Dist.  v.  Burke,  158 

8  Williams   v.   Altnow,   51   Or.   275,       ^    ^  16g>  UQ  pae    ^g>  ^'^ 

95  Pac.  200,  97  Pac.  539.     See,  also,  however,     certain     conditions     as     to 

Whited  v.  Cavin  (Or.),  105  Pac.  396;  notice  before  use  improper. 

Sanders  v.  Robison,  14  Idaho,  770,  95  12  Boulder     etc.     Co.     v.     Hoover 

Pae.    1057.  (Colo.),  110  Pae.  75. 


§  509  Ch.  22.     CHANGE  OF  MODE  OF  ENJOYMENT.     (3d  ed.)  553 

and  final  decision  of  the  State  Engineer,  subject  to  review  in 
court.  Such  statutes  exist  in  numerous  States,13  and  the  certifi- 
cates and  licenses  issued  by  the  State  Engineers  frequently 
declare  the  right  to  be  inseparable  from  the  land  named  therein. 

So  far  as  these  statutes  have  come  before  the  courts,  however, 
the  early  California  cases  have  been  generally  cited,  and  the 
statutes  have  not  been  given  great  force.  In  a  Wyoming  case  it 
was  held  that  the  statute  requiring  appropriators  to  file  a  descrip- 
tion of  the  land  irrigated,  which  description  is  incorporated 
in  the  final  certificate,  does  not  limit  the  right  -to  use  the  water 
to  that  land  inseparably;  on  the  contrary,  the  water-right  may 
nevertheless  be  sold  for  use  on  different  land ; 14  saying  that 
many  of  the  objections  urged  against  this  rule  of  change  of  place 
of  use  are  fanciful.  In  Idaho,  likewise,  the  court  refused  to 
give  full  effect  to  statutes  seeking  this  same  end.15 

In  a  Colorado  ease  16  it  is  said  that  the  disastrous  consequences 
of  the  rule  making  the  right  dependent  on  the  place  of  use  for- 
bids giving  such  a  construction  to  statutes  as  will  concede  the 
same,  if  another  construction  is  possible.  In  a  California  case  17 
it  is  said  that  the  rule  would  lead  to  endless  complications,  and 
materially  impair  the  value  of  water  rights  and  privileges. 
Concerning  the  Nevada  statute  it  is  said: ia  "Parties  entitled  to 
water  are  required  to  make  application  to  the  State  Engineer 
before  any  transfer  may  be  made,  but  in  practice  farmers  are 
allowed  to  use  the  water  to  which  they  'are  entitled  on  lands 
other  than  those  in  connection  with  which  the  rights  were 
acquired,  if  others  are  not  injured  by  the  change.  That  is,  if 
a  farmer  prefers  to  use  his  water  on  new  land  and  let  the  old 

13  Idaho.— Stats.  1903,  p.  223,  sees.  Utah.— Stats.  1905,  c.  108,  sec.  53; 

5,  8;   1907,  p.  507.  Stats.  1909,  c.  62,  p.  84;  Comp.  Laws 

Montana.— See  Civ.  Code,  sec.  1900.  1907,  sees.  1228x8  and  1288x24. 

Nebraska. — Comp.  Stats.  1903,  sec.  Wyoming. — Stats.  1909,  c.  68,  sec.  1. 

6436.  This  list  is  not  complete. 

Nevada. — Stats.  1905,  p.  66 ;   1907,  *•*  Johnston  v.  Little  Horse  etc.  Co., 

p.  30,  sec.  26.  13  Wyo.  208,  110  Am.  St.  Eep.  986, 

New    Mexico.— Stats.    1907,    p.    71,  79  Pac.  22,  70  L.  E.  A.  341. 

sees.  44,  45.  15  Hard   v.   Boise   City   etc.   Co.,   9 

North  Dakota.—  Stats.  1905,  p.  274,  Idaho,  589,  76  Pac.  331,  65  L.  E.  A. 

sees.  1,  21,  23,  30,  50.  407;    Boise  City  etc.   Co.  v.   Stewart, 

Oklahoma.— Stats.     1905,     p.     274,  10  Idaho,  38,  77  Pac.  25,  321. 

sees.  21,  30.  16  Coffin  v.  Left  Hand  Ditch  Co.,  6 

Oregon. — Stats.    1909,    c.    216,    sec.  Colo.  443. 

65.  1T  Davis  v.  Gale,  32  Cal.  32,  91  Am. 

South  Dakota.— Stats.  1905,  p.  201,  Dec.  554,  4  Morr.  Min.  Eep.  604. 

sees.  31,  47;  Stats.  1907,  c.  180,  sec.  ]8  Bulletin    168,    17.    S.    Dept.    of 

48.  Agric.,  Office  of  Exper.  Sta. 


552  (3d  ed.)    Pt.  in.     THE  LAW  OF  PRICE  APPROPRIATION.          §  510 

land  lie  fallow,  he  is  allowed  to  do  so.  This  is  done  upon  the 
theory  that  the  water  would  be  used  on  the  old  land  if  the 
farmer  was  not  allowed  to  use  it  on  the  new  land,  and  it  makes 
no  difference  to  the  holders  of  the  other  rights  what  land  the 
water  is  used  on."  (Being  the  ground  on  which  the  courts 
originally  upheld  changes.) 

In  Arizona  and  Nebraska,  however,  statutes  limiting  the  power 
to  change  place  of  use  have  been  given  effect.19  But  in  Arizona, 
while  the  appropriation  must  be  for  some  definite  land,  it  need 
not  remain  the  same  tract  of  land.20  In  Oregon  recent  cases  tend 
to  restrict  the  right  to  the  place  of  use  inseparably.21 

(3d  ed.) 

§  510.    Change  on  Sale  of  Water-right. — The  recent  statutory 

attempts  to  restrict  the  place  and  purpose  of  use  are  due  to 
objections  raised  to  changes  resulting  from  sales  of  water-right, 
urging  that  allowing  purchasers  to  use  the  water  for  new  land 
or  new  purposes  or  different  kinds  of  industries,  even  if  without 
injury  to  others,  leads  to  confusion  that  is  inimical  to  the 
plan  of  the  water  codes,  which  seek  to  establish  an  official  list, 
or  register,  or  "Domesday  Book,"  as  it  is  sometimes  said,  of 
water-rights.  Frequent  changes  resulting  from  sales  are  not  in 
the  line  thus  contemplated.22  In  the  absence  of  express  statutes 
contra,  however,  the  courts  hold  that  a  change  of  place  of  diver- 
sion or  use  or  purpose  of  use  following  a  sale  is  as  permissible 
as  a  change  made  on  any  other  occasion.  The  statutes  are  nar- 
rowly construed  so  as  still  to  hold  that  the  water-right  may  be 
sold  separate  from  the  land.23 

19  Slosser  v.  Salt  River  Co.,  7  Ariz.  still  unprovided  for.     These  are  trans- 
376,  65  Pae.  332;   Gould  v.  Maricopa  fers  of  lands  which  carry  with  them 
etc.   Co.,   8   Ariz.    429,    76   Pac.    598;  the  rights  of  water.     There  is  no  pro- 
Farmers'  Irr.  Dist.  v.  Frank,  72  Neb.  vision   for   making   a   record   of   such 
136,    100    N.   W.    286.     In   Clague   v.  transfers  in  the  State  Engineer's  of- 
Tri-State    Co.    (1909),    84    Neb.    499,  fice,  and  consequently  the   records  do 
133  Am.  St.  Rep.  637,  121  N.  W.  570,  not   show  correctly  the   ownership   of 
sale    for    use    on    different    land    was  rights.     It  is   frequently   desirable   to 
upheld,  however,  as  to  sales  prior  to  send    notices    to    water-right    holders, 
the  statute.  and   often   these    notices    are   not   re- 

20  Biggs  v.  Utah  etc.   Co.,   7  Ariz.  ceived,  because  the  original  owner  has 
331,  64  Pac.  494.  transferred  his  land  and  water-right 

21  Whited  v.  Cavin  (Or.),  105  Pae.  and  left  the  State."     Bulletin  168,  U. 
396;  Ison  v.  Sturgill   (Or.),  109  Pac.  S.     Dept.     Agric.     Exper.     Sta.     The 
579.  same  may  also  be  remarked  of  rights 

22  The  difficulty  nevertheless  remains  acquired  by  adverse  use. 

even  when  water  is  inseparable  from  23  Frank  v.  Hicks,  4  Wyo.  502,  35 
land.  "Another  class  of  transfers  is  Pac.  475,  1025;  McPhail  v.  Forney,  4 


§510 


Ch.  22.     CHANGE  OF  MODE  OF  ENJOYMENT.     (3d  ed.)  553 


The  water-right  may  be  reserved  on  a  sale  of  the  land.24 
Rental  rights  are"  assignable  free  of  the  land  in  Idaho  in  analogy 
to  similar  sales  of  original  appropriations.25  On  a  sale,  the  pur- 
chaser may  use  the  water  for  a  new  purpose,  as  from  irrigation 
to  city  water  supply,1  or  from  irrigation  to  storage.2  That  the 
water-right  may  be  sold  separate  from  land,  for  use  on  other 
land,  and  for  other  purposes,  is  generally  held  (if  the  change 
does  others  no  injury).3 

While  the  place  of  use  may  thus  be  changed  on  a  sale,  yet  if 
the  change  is  asserted  as  a  reservation  on  sale  of  the  land,  the 
intent  to  reserve  the  water-right  on  a  sale  of  the  land  must  be 
affirmatively  shown,  as  elsewhere  discussed.  Though  not  insep- 
arable from  the  land,  the  water-right  may  be,  and  usually  is, 
appurtenant  thereto.4 

So  far  as  statutes  attempt  to  change  this  rule,  reference  is 
further  made  to  previous  sections.5  Such  statutes  are  an  uncon- 
scious return  to  common-law  principles;  for  at  common  law  the 


Wyo.  556,  35  Pac.  773;  Johnston  v. 
Little  Horse  etc.  Co.,  13  Wyo.  208, 
110  Am.  St.  Rep.  986,  79  Pac.  22,  70 
L.  R.  A.  341;  Crippen  v.  Comstock,  17 
Colo.  App.  89,  66  Pac.  1074;  Smith  v. 
Denniff,  23  Mont.  65,  57.  Pac.  557,  50 
L.  E.  A.  737;  Cache  La  Poudre  etc. 
Co.  v.  Larimer  etc.  Co.,  25  Colo.  144, 
71  Am.  St.  Rep.  123,  53  Pae.  318; 
Boise  etc.  Co.  v.  Stewart,  10  Idaho, 
38,  77  Pac.  25,  32;  Bessemer  etc.  Co. 
v.  Woolley,  32  Colo.  437,  105  Am.  St. 
Eep.  91,  76  Pac.  1054;  Strickler  v. 
Colorado  Springs,  16  Colo.  61,  25  Am. 
St.  Eep.  245,  26  Pac.  313;  Clague  v. 
Tri-State  Co.  (1909),  84  Neb.  499,  133 
Am.  St.  Eep.  687,  121  N.  W.  570  (up- 
holding sales  prior  to  the  statute),  and 
other  eases  cited  below,  sec.  550  et 
seq.,  in  discussing  the  question  of 
"Appurtenance." 

24  Dodge  v.  Marden,   7  Or.   457,   1 
Morr.  Min.  Eep.  63. 

25  Hard  v.  Boise  etc.  Co.,  9  Idaho, 
589,   76   Pae.   331,   65   L.   E.   A.   407, 
Quaere,  whether  this  follows  in  Cali- 
fornia  as   a   result   of   Stanislaus   W. 
Co.  v.  Bachman,  152  Cal.  716,  93  Pac. 
858,    15   L.   R.   A.,   N.    S.,   359.     See 
infra,  sec.  1324  et  seq. 

i  Strickler  v.  Colorado  Springs,  16 
Colo.  61,  25  Am.  St.  Eep.  245,  26  Pac. 
313. 


2  Seven    Lakes    etc.    Co.    v.    New 
Loveland   etc.    Co.,    40    Colo.    382,   93 
Pac.  485,  17  L.  E.  A.,  N.  S.,  329. 

3  Cave    v.    Crafts,    53    Cal.     135; 
Coonradt  v.  Hill,  79  Cal.  587,  21  Pac. 
1099;  Crocker  v.  Benton,  93  Cal.  365, 
28  Pac.  953 ;  Smith  v.  Corbit,  116  Cal. 
587,  48  Pac.  725;   Tucker  v.  Jones,  8 
Mont.    225,    19    Pac.    571;    Sweetland 
v.  Olsen,   11   Mont.   27,   27   Pac.   3.39; 
Smith    v.    Denniff,    23    Mont.    65,    57 
Pac.    557,   24   Mont.   20,    81   Am.    St. 
Eep.   408,   60   Pac.   398,   50  L.   E.   A. 
741;   Simmons  r.  Winters,  21  Or.  35, 
28    Am.    St.    Eep.    727,    27    Pac.    7; 
Coventon  v.   Seufert,   23   Or.   548,   32 
Pac.  508;  Turner  v.  Cole,  31  Or.  154, 
49  Pac.  971;  Toyaho  Co.  v.  Hutchins, 
21  Tex.  Civ.  App.  274,  52  S.  W.  101; 
Snyder  v.  Murdock,  20  Utah,  419,  59 
Pac.    91;    Fisher    v.    Bountiful    City, 
21  Utah,  29,   59  Pac.   520;   Frank  v. 
Hicks,  4  Wyo.  502,  35  Pac.  475,  1025; 
McPhail   v.   Forney,   4   Wyo.   556,   35 
Pac.  773;  Mt.  Carmel  Co.  v.  Webster, 
140  Cal.  183. 

See      Windsor      Co.      v.      Hoffman 
(Colo.),  109  Pac.  423. 

4  See  sec.  550  et  seq.,  appurtenance. 

5  Sees.  282,  509,  510. 


554=  (3ded.)    Pt.  III.     THE  LAW  OF  PRIOR  APPROPRIATION.          §511 

use  of  water  is  inseparably  attached  to  riparian  lands,  and  can- 
not be  severed  therefrom  by  sale  or  in  any  other  way.6 


E.     CHANGE     OP    PURPOSE     OF  USE. 
(3d  e<L) 

§  511.  Change  of  Purpose. — A  change  of  purpose  for  which 
the  water  is  used  was  at  the  start  of  the  doctrine  of  appropria- 
tion in  California  treated  as  a  distinct  question  from  change  of 
place.7  It  was  urged  in  several  cases  that  the  right  was  limited 
to  the  purpose  for  which  first  appropriated  and  that  a  use  for 
a  new  purpose  could  be  obtained  only  by  new  appropriation. 
This  view  obtained  some  footing  in  the  early  decisions.8  But  it 
never  took  a  firm  hold.  In  McDonald  v.  Bear  River  Co.9  it  was 
held  that  use  for  a  sawmill  could  be  changed  to  use  for  a  grist- 
mill, and  in  Davis  v.  Gale,10  it  was  said  (obiter)  that  use  for  placer 
mining  could  be  changed  to  use  for  quartz  mining  without  loss 
of  priority.  The  more  recent  cases  are  in  this  line,  though  they 
do  not  go  into  the  question  closely.  They  disregard  any  dis- 
tinction between  change  of  place  of  use  (well  established)  and 
change  of  purpose  of  use.  The  rule  has  rather  been  assumed 
as  applying  to  change  of  purpose  than  independently  decided, 
though  just  as  well  settled  to-day.  The  rule  now  is  that  there 
is  no  limitation  on  change  of  purpose  of  use  except  that  others 
must  not  be  injured  by  the  change.11  In  Montana,  "section 

6  Infra,  sec.  847.  1  Morr.  Min.  Rep.  650 ;  Hill  v.  Smith, 
Speaking    of    a    certain    European      27  Cal.  476,  4  Morr.  Min.  Rep.  597; 

country,  it  is  said    (Hall's  Irrigation  Nevada  etc.  Co.  v.  Kidd,  37  Cal.  282, 

Development,     Part     I,     page     387):  at  315;  and  compare  Lowden  v.  Frey, 

"The    regulations    of    some     of     the  67   Cal.   474,   8   Pac.  31;    Shenandoah 

canals  provide  heavy  penalties  for  an  etc.   Co.  v.   Morgan,   106  Cal.  409,  at 

attempted  sale,  temporary  or  perma-  418,  39  Pac.  802,  and  note  in  43  Am. 

nent,   of  a   water  turn  or  right,  and  Dec.    28;    Farnham    on    Waters,    sec. 

irrigators    are    not   allowed    even    to  677. 

lend  their  water  to  others  without  the  9  13   Cal.   220,   1   Morr.   Min.   Rep. 

permission    of    every    other    irrigator  626. 

from  the  canal,  and  the  formal  con-  10  32  Cal.  26,  91  Am.  Dec.  554,  4 

sent   of   those  who   might   be   injured  Morr.  Min.  Rep.  604. 

by  such  action."    In  reading  this,  per-  n  Ramelli  v.  Irish,  96  Cal.  214,  31 

haps  it  should  be  remembered  that  the  Pac.  41;  Jacob  v.  Lorenz,  98  Cal.  332, 

law  of  riparian  rights  is  the  basic  law  33   Pac.   119;    Gallagher  v.  Montecito 

of    European   countries.    Infra,    sees.  etc.   Co.,  101  Cal.  242,   35   Pac.   770; 

685  et  seq.,  1027  et  seq.  Hargrave  v.  Cook,  108  Cal.  72,  41  Pac. 

7  E.  g.,  Maeris  v.  Bicknell,  7  Cal.  18,  30  L.  R.  A.  390;  though  it  should 
261,  68   Am.  Dec.  257,  1  Morr.  Min.  be   noted   that   only   change   of   place 
Rep.  601.  of  use  is  specifically  covered  by  sec- 

8  E.   g.,  Ortman  v.  Dixon,   13   Cal.  tion  1415,  California  Civil  Code.     Ac- 
33;  MeKinney  v.  Smith,  21  Cal.  374,  cord,  Pomeroy  on  Riparian  Rights,  sec. 


§  511  Ch.  22.     CHANGE  OF  MODE  OF  ENJOYMENT.     (3d  ed.)  555 

1882  of  the  Civil  Code  recognizes  the  right  of  an  appropriator 
or  owner  of  a  water-right  to  change  the  place  of  diversion,  as 
well  as  the  use  and  the  place  of  use.  It  therefore  does  not  fol- 
low that,  because  water  has  been  appropriated  for  a  particular 
use,  it  forever  thereafter  must  be  applied  to  that  use."12  As 
was  said  by  Justice  Field  in  Atchinson  v.  Peterson: 13  "A  differ- 
ent use  of  water  subsequently  does  not  affect  the  right."  The 
change  may  be  made  on  a  sale  of  the  water-right,  the  purchaser 
using  it  for  a  new  purpose.14 

In  a  Nebraska  case15  it  was  held,  relying  on  the  California 
cases,  that  a  change  could  be  made  from  use  for  power  pur- 
poses to  use  for  irrigation.  A  change  may  be  made  from  use 
for  crops  requiring  early  irrigation  to  other  crops  requiring 
late  irrigation,  remembering  always  that  others  must  not  be 
injured  by  the  change ; 16  from  mining  to  agricultural  purposes, 
and  vice  versa 17  (provided  there  is  no  injury  to  others)  ; 18  or  from 
irrigation,  mining  or  manufacturing  to  electric  power ; 19  or  from 
culinary  use  to  irrigation.20  In  a  Colorado  case  a  change  was 
permitted  from  irrigation  to  a  city  water  supply,21  though  on 
the  other  hand,  Colorado  prohibits,  by  statute,  a  change  from 
domestic  use  to  irrigation.22  Likewise  a  change  has  been  per- 
mitted in  Colorado  from  direct  irrigation  to  storage  for  use  later 
in  the  season.23 

65;    Kinney   on   Irrigation,   sec.   15,4;  17  Farmers'  Co.  v.  Gothenburg  Co., 

Farnham  on  Waters,  sec.  677;  and  see  supra  (dictum). 

cases  collected  in  60  Am.  St.  Eep.  813,  18  Smith  v.  Duff,  39  Mont.  382,  133 

note.  Am.  St.  Eep.  587,  102  Pac.  984. 

See     Kaoloea     Co.     v.     Stewart,     4  19  Thompson  v.  Pennebaker  (Wash.), 

Hawaii,   416,  upholding  change   from  173     Fed.     849,     97    C.     C.     A.     591 

domestic    use    to    other    uses.     N.    D.  (dictum).     See    Whitehair    v.    Brown 

Stats.  1905,  c.  34,  sec.  51;  Eev.  Codes  (1909),  80  Kan.  297,   102  Pac.   783, 

(1905),  sec.  7604  et  seq.  change     from     flour- mill     to     electric 

12  Hayes  v.  Buzard,  31  Mont.  74,  77  light  plant.     But  see  Cal.  Stats.  1911, 
Pac.    427.     Other    Montana    decisions  c.  406,  sec.  3,  saying  that  change  to 
upholding   change   of   purpose  of  use  water-power  from  other  uses  can  only 
are   Woolman   v.   Garringer,    1    Mont.  be  made  by  new  appropriation  under 
535,   1   Morr.   Min.   Eep.   675 ;    Power  this  act. 

v.  Switzer,  21  Mont.  523,  55  Pac.  32.  20  Patterson  v.   Eyan    (Utah),   108 

13  20  Wall.  514,  22  L.  Ed.  414,  1      Pac.  1118. 

Morr.  Min.   Eep.  583.  21  Strickler  v.  Colorado  Springs,  16 

w  Supra,  see  change  on  sale.  Colo.  61,  25  Am.  St.  Eep.  245,  26  Pac. 

15  Farmers'  etc.  Irr.  Co.  v.  Gothen-  313. 

burg  Irr.  Co.,  73  Neb.  223,  102  N.  W.  *      22  Eev.     Stats.     1908,     sees.     3178, 

487.  3179;   Laws   1891,  p.   402,  see.   2. 

18  Seven    Lakes    etc.    Co.    v.    New  23  Seven    Lakes    etc.    Co.    v.    New 

Loveland   etc.   Co.,   40   Colo.    382,   93  Loveland   etc.    Co.,   40   Colo.   382,   93 

Pac.  485,  17  L.  E.  A.,  N.  S.,  329.  Pae.  485,  17  L.  E.  A.,  N.  S.,  329. 


556  (3d  ed.)    Pt.  III.     THE  LAW  OF  PEIOK  APPROPRIATION.          5  511 

The  change  of  purpose  of  use  is,  however,  governed  by  the 
same  rules  as  those  of  change  of  place  of  use,  and,  in  fact,  fre- 
quently treated  as  the  same  question.  Consequently  the  change 
cannot  be  made  if  others  are  injured  by  the  new  use,24  as  where 
a  change  was  made  from  irrigation  to  storage  needing  additional 
water  and  different  times  of  flow.  This  is  not  permissible.23 
Where  the  appropriation  is  originally  of  running  water  for  irri- 
gation, storage  reservoirs  cannot  be  introduced  to  the  injury  of 
others,1  but  may,  in  the  absence  of  such  injury.2  An  easement  on 
land  cannot  be  changed  to  use  for  other  purposes  than  those  for 
which  acquired  if  it  changes  the  character  of  servitude.3  Use  for  a 
mill,  which  returns  the  water  to  the  stream,  cannot  be  changed 
to  use  for  storage  or  irrigation,  when  to  do  so  would  not  return 
the  water  to  stream,  and  would  thus  take  it  from  lower  appro- 
priators,  though  subsequent  in  time  of  appropriation.4  This,  in 
Colorado,  is  sometimes  phrased  by  saying  that  a  priority  "can- 
not be  made  to  do  double  duty,"  meaning,  apparently,  that 
cumulative  purposes  of  use,  whereby  the  water  is  used  over 
again  before  discharged  from  control,  cannot  be  made  to  injury 
of  others.  Having  appropriated  water  only  for  actual  irrigation 
in  the  irrigation  season,  it  cannot  be  so  used  and  also  stored  in 
the  nonirrigating  season,  which  is  said  to  make  the  priority  do 
"double  duty."5  That  the  change  injures  others  not  parties  to 
the  action  cannot  be  considered.6 

Besides  the  prohibition  of  injury  to  others,  there  are  further  to 
be  noted  the  recent  statutory  checks  upon  changes  already  men- 
tioned, which  are  being  extended  to  change  of  purpose  as  well 
as  other  changes.7 

24  Compare    Cal.     Civ.    Code,    sec.  17  L.  R.   A.,  N.   S.,  329.     See,  also, 
3512.  Cache  La  Poudre   Co.   v.   Hawley,   43 

25  Colorado  etc.  Co.  v.  Larimer  etc.  Colo.  32,  95  Pac.  317;   Diez  v.  Hart- 
Co.,  26  Colo.  47,  56  Pac.  185.  bauer,  46  Colo.  599,  105  Pac.  868,  re- 

1  New    Loveland    etc.    Co.    v.    Con-       garding  double  duty. 

eolidated    etc.    Co.,    27    Colo.   525,    62  6  Seven  Lakes  Co.  v.  New  Loveland 

Pac.  366,   52   L.  R.   A.   266.  Co.,  supra.     See  infra,  sec.  626  et  seq. 

2  Seven  Lakes  etc.  Co.  v.  New  Love-  7  E.  g.,  Wyo.  Stats.  1909,  c.  68,  sec. 
land  etc.   Co.,   40   Colo.   382,   93   Pac.  1.     But     section    3     thereof     permits 
485,  17  L.  R.  A.,  N.  S.,  329.  change  from  an  unpreferred  use  to  a 

3  Drake  v.  Russian  R.  Co.    (1909),  preferred   use   with   consent  of   board 
10  Cal.  App.  654,  103  Pac.  167.            •    of   control  and  condemnation  of   any 

4  Windsor  Co.  v.  Lake  Supply  Co.,  existing  unpreferred  rights  impaired. 
44  Colo.  214,  98  Pac.  729.  See,    also,   as   to   change    of   purpose, 

5  Seven  Lakes  Co.  v.  New  Loveland  S.  D.  Stats.  1907,  c.  180,  sec.  46. 
Co.  (1907),  40  Colo.  382,  93  Pac.  485, 


§512  Ch.22.     CHANGE  OF.  MODE  OF  ENJOYMENT.     (3ded.)  557 

'(3d  ed.) 

§  512.  Conclusion. — The  rule  permitting  changes  is  an  in- 
stance of  the  possessory  origin  of  the  law  of  appropriation  upon 
the  public  domain,  and  is  disappearing,  though  more  slowly 
than  the  other  possessory  characteristics  of  the  early  law.  The 
disappearance  is  resulting  from  the  passage  of  lands  into  private 
hands,  for  the  law  prohibits  injury  to  them ;  from  the  withdrawal 
of  public  lands,  destroying  the  freedom  of  change  there;  and 
from  the  internal  transition  in  the  law  of  appropriation  from  a 
possessory  system  to  a  system  of  law  making  the  right  inhere 
in  the  specific  initial  mode  of  use. 

§§  513-521.     (Blank  numbers.) 


558  (3d  ed.)    Pt.  in.    THE  LAW  OF  PRIOR  APPROPRIATION.         §  522 


CHAPTER  23. 
POLLUTION. 

§  522.  Western  questions. 

§  523.  Under  the  common  law  of  riparian  rights. 

§  524.  Under  the  law  of  prior  appropriation. 

§  525.-  Materiality  of  interference. 

§  526.  Sams. 

§  527.  Mining  debris. 

§  528.  Priority. 

§  529.  Injunctions. 

§  530.  Conclusions. 

§§  531-535.     (Blank  numbers.) 

(3d  ed.) 

§  522.  Western  Questions. — The  injury  to  a  water-right 
usually  complained  of  in  the  West  is  diversion  or  diminution  of 
quantity.  There  are  other  ways,  however,  in  which  a  water-right 
may  be  infringed,  such  as  injurious  retardation  and  slowing  of 
velocity  without  diversion ; J  or  acceleration  of  velocity ;  or  pollu- 
tion and  fouling  of  quality.  Retardation  and  acceleration  have 
hardly  at  all  entered  into  the  Western  law,  although  an  important 
matter  in  the  Eastern  mill  communities;  but  pollution  has  been 
an  important  matter  because  of  the  extensive  use  of  water  in 
mining.  In  this  industry  water  in  large  quantities  is  required, 
not  only  for  its  power  in  running  machinery,  but  still  more  for 
its  use  in  loosening  and  carrying  away  earth  in  placer  mining, 
and  for  diluting  and  carrying  the  crushed  rock  in  ore  milling ;  in 
both  of  which  processes  after  use  it  is  discharged  in  large  volume 
heavily  laden  with  "tailings"  or  earthy  pulp.  In  the  early  days 
the  conflict  was  between  different  miners  who  needed  the  same 
water  and  for  whom  its  use,  when  too  heavily  charged  with  debris, 
was  impaired;  in  latter  days,  between  miners  and  agriculturists 
whose  use  below  for  irrigation  and  domestic  use  was  impaired, 
and  upon  whose  land  the  debris  was  brought  down  and  accumu- 
lated. 

The  litigation  in  the  West  has  usually  been  decided  under  the 
law  of  prior  appropriation,  and  not  under  the  common  law;  but 
they  are  for  convenience  considered  together  here. 

1  See   Schodde   v.   Twin  Falls   Co.,  supra,  sec.  310. 


§523  Ch.23.    POLLUTION.  (SdedJ  559 

(3d  ed.) 

§  523.    Under  the  Common  Law  of  Riparian  Rights. — So  far 

as  the  use  of  water  is  alone  concerned,  the  test  of  wrongful 
pollution  under  the  law  of  appropriation  is  different  in  principle 
from  that  at  common  law  between  riparian  proprietors.  At  com- 
mon law  the  rights  of  riparian  owners  are  equal  and  correlative 
— each  has  a  right  to  a  reasonable  use  of  the  stream,  and  the 
test  of  whether  the  pollution  by  a  riparian  owner  complained  of  is 
wrongful  to  another  riparian  owner  is  whether  it  is  excessive  so 
as  to  be  unreasonable  under  all  the  facts,  and  not  merely  whether 
it  interferes  with  the  lower  riparian  owner.  Where  the  question 
is  solely  between  riparian  owners,  and  domestic  use  is  not  in- 
volved (as,  for  example,  two  riparian  miners),  the  test  remains 
whether  the  pollution  is  carried  to  an  unreasonable  or  excessive 
degree.  "When  questions  arise  between  riparian  owners  respect- 
ing the  right  of  one  to  make  a  particular  use  of  the  water  in 
which  they  have  a  common  right,  the  right  will  generally  depend 
on  the  reasonableness  of  the  use  and  the  extent  of  the  detriment 
to  the  lower  owner. ' ' 2 

Where  the  pollution  interferes  with  drinking  or  other  domestic 
use,  but  little  latitude  is  allowed  at  common  law,  because  domes- 
tic or  "natural  uses"  are  preferred  uses  at  common  law.3  Like- 
wise, no  question  of  reasonableness  can  arise  at  common  law 
where  one  party  is  a  nonriparian  owner.4  There  has  hence,  at 
common  law,  been  some  tendency  to  class  pollution  as  a  wrong 
per  se,  but  properly  this  (if  at  all)  is  true  only  where  it  inter- 
feres with  drinking  or  domestic  use,  or  where  it  is  caused  by  a 
nonriparian  proprietor ;  and  not  as  between  riparian  owners  alone, 
when  domestic  use  is  not  involved. 

We  would  sum  up  this  matter  by  saying  that-  if  the  pollution  is 
by  a  nonriparian  owner,  or  if,  when  caused  by  a  riparian  owner, 
it  goes  to  an  unreasonable  degree  or  interferes  with  domestic  use, 
then  it  is  wrongful  at  common  law,  and  it  is  no  excuse  (at  least, 

2  Tetherington  v.  Donk  Co.  (1908),  661,  88  N.  E.  354  (oil  pollution).    See 

232    111.    522,    83    N.    E.    1048;   Me-  infra,  sec.  799  et  seq. 

Namara   v.    Taft    (1908),    196    Mass.  3  Infra,  sec.  740. 

597,  83  N.  E.  310,  13  L.  E.  A.,  N.  S.,  4  Stockport    W.    W.    v.    Potter,    3 

1044  (but  holding  the  pollution  in  the  Hurl.  &  C.  300,  10  Jur.,  N.  S.,  1005; 

case    to    interfere   with    domestic    use  People  ex  rel.  Ricks  W.  Co.  v.  Elk  E. 

and  also  to  go  to  an  unreasonable  de-  Co.,   107   Cal.   221,   48   Am.   St.   Eep. 

gree  on  the  facts) ;  Boyd  v.  Schreiner  125,  40  Pac.  521.     Se«  infra,  sees.  814 

(Tex.  Civ.  App.  1909),  116  S.  W.  100;  et  seq.,  817. 
Ohio  Oil  Co.  v.  WestfaU,  43  Ind.  App. 


560   (3ded.)    Pt.  III.     THE  LAW  OF  PRIOR  APPROPRIATION.          §523 


to  an  action  at  law  for  damages)5  that  the  pollution  is  in  the 
exercise  of  an  otherwise  legitimate  business  such  as  mining;  yet 
between  riparian  owners  where  domestic  use  is  not  involved  (for 
example,  between  two  riparian  miners  or  mill  owners),  the  test 
remains  whether  the  interference  with  each  other  goes  to  an 
unreasonable  degree  in  consideration  of  the  equal  rights  of  both 
to  make  a  reasonable  use  of  the  stream.8 


5  Infra,  sec.  648  et  seq. 

6  "A   lower   riparian   owner    is   en- 
titled    to     protection     by     injunction 
from    the    pollution    of    the    stream 
which  prevents  his  reasonable  use  of 
it   in   the  absence   of   special   equities 
or     qualifying     circumstances     which 
take  the  case  out  of  the  general  rule." 
Headnote     to     Thropp     T.     Harper's 
Ferry  etc.  Co.,  142  Fed.  690,  74  C.  C. 
A.  22. 

A  riparian  proprietor  may  enjoin 
pollution  of  a  stream  though  there  is 
another  stream  on  his  land  which  he 
might  use.  Brown  v.  Gold  Coin  Min. 
Co.,  48  Or.  277,  86  Pac.  361.  To 
cut  trees  and  allow  them  to  fall 
into  a  stream  and  interrupt  it,  or  to 
decay  there  and  pollute  it,  is  not 
within  the  reasonable  uses  allowed  a 
riparian  owner,  and  he  will  be  en- 
joined. Fisher  v.  Feige,  137  Cal.  39, 
92  Am.  St.  Rep.  77,  69  Pac.  618,  59 
L.  R.  A.  333.  Pollution  by  cattle  foul- 
ing the  water  may  be  wrongful,  and 
enjoined.  Barton  v.  Union  Cattle 
Co.,  28  Neb.  350,  26  Am.  St.  Rep.  340, 
44  N.  W.  454,  7  L.  R.  A.  457.  (See 
McEvoy  v.  Taylor,  56  Wash.  357,  105 
Pac.  851,  holding  such  pollution  not 
wrongful  in  that  case.)  A  lower  ri- 
parian owner  may  get  an  injunction 
against  city  sewage.  Peterson  v.  Santa 
Rosa,  119  Cal.  387,  51  Pac.  557;  Nevil 
v.  City  of  Princeton  (Ky.  Civ.  App.), 
118  S.  W.  363.  In  granting  such  an 
injunction  a  recent  case  (Markwardt 
v/City  of  Guthrie,  18  Okl.  32,  90  Pac. 
26,  9  L.  R.  A.,  N.  S.,  1150,  11  Ann. 
Cas.  581)  says,  after  examination  of 
authorities  therein  cited:  "From  a 
careful  examination  and  consideration 
of  these  authorities,  and  many  others, 
we  have  reached  the  conclusion:  (1) 
That  the  settled  doctrine  of  the  Eng- 
lish courts,  as  well  as  some  of  our 
State  courts,  is  that  a  lower  riparian 
proprietor  is  entitled  to  recover  dam- 
ages for  the  pollution  of  the  waters 


of  a  stream  by  a  municipal  corpora- 
tion, by  the  discharge  of  sewage  into 
the  stream,  on  the  broad  ground  of 
common  sense  and  natural  justice; 
(2)  that  the  supreme  court  of  the 
United  States  and  a  number  of  the 
State  courts  base  their  decisions  on 
the  ground  that  it  is  a  taking  of 
private  property  for  public  use,  with- 
in the  meaning  of  the  Federal  con- 
stitution; (3)  that  other  States  hold 
that  it  is  a  damage  to  property,  with- 
in the  meaning  of  their  constitutional 
inhibitions  against  the  taking  or  dam- 
aging of  property  without  just  com- 
pensation; and  (4)  a  number  of  the 
States  hold  that  the  lower  riparian 
proprietor  is  entitled  to  recover  dam- 
ages for  injury  to  his  health,  comfort 
and  repose,  on  the  ground  that  it  is 
the  maintenance  of  a  nuisance.  While 
these  decisions  are  based  upon  differ- 
ent ground,  yet,  upon  whatever  ground 
they  may  rest,  they  all,  with  the  ex- 
ception of  the  decisions  of  the  In- 
diana courts,  seem  to  uniformly  hold 
that,  under  such  circumstances,  dam- 
ages are  recoverable,  and  many  of 
them  hold  that,  whefre  the  evidence  is 
clear  and  convincing,  injunction  will 
lie  to  restrain  the  continuance  of  the 
nuisance." 

Pollution  was  held  wrongful  at 
common  law  in  Elliott  v.  Ferguson 
(Tex.  Civ.  App.),  103  S.  W.  453  (a 
cemetery)  ;  Mexia  etc.  Co.  v.  Johnson 
(Tex.  Civ.  App.  1909),  120  S.  W.  534 
(oil  polluting  stream,  action  for  dam- 
ages at  law)  ;  Worthen  v.  White  etc. 
Co.,  74  ft.  J.  Eq.  647,  70  Atl.  471 
(waste  from  paper  pulp  factory  en- 
joined) ;  City  of  Aberdeen  v.  Lytle 
Log  etc.  Co.  (Wash.),  108  Pac.  945 
(lumber  rotting  in  stream) ;  Tether- 
ington  v.  Donk  Co.  (1908),  232  111. 
522,  83  N.  E.  1048  (mine  refuse); 
Williams  v.  HaiJe  Min.  Co.  (S.  C.), 
66  S.  E.  1057  (mine  refuse  enjoined) ; 
Alabama  Co.  v.  Vines,  151  Ala.  39°, 


§524 


Ch.  23.     POLLUTION. 


(3ded.)  561 


A  right  to  pollute  may,  of  course,  arise  by  contract  as  between 
the  contracting  parties.7 


(3d  ed.) 

§  524.    Under  the  Law  of  Appropriation. — But  under  the  law 

of  prior  appropriation  the  appropriators'  rights  are  not  correla- 
tive.8 A  prior  one  has  an  exclusive  right  independent  of,  and 
not  relative  to,  those  later  in  time,  and  the  test,  on  principle,  is 
not  whether  the  pollution  does  unreasonable  interference  with 
the  use  of  the  prior  appropriator,  but  whether  it  does  any  mate- 
rial interference  at  all.  If  it  does,  it  cannot  be  excused  on  the 
ground  of  being  a  reasonable  use,  such  as,  on  clear  facts  between 
two  riparian  owners  where  domestic  use  is  not  involved,  it  might 
at  common  law.  The  prior  appropriator  has  an  exclusive  right 
to  the  purity  of  the  stream  as  he  found  it,  and  cannot  in  any 
degree  be  subordinated  to  later  claimants  on  the  ground  that  such 
subordination  is  necessary  to  allow  use  by  the  subsequent  ap- 
propriator.9 


44  South.  377;  Wood  v.  Waud,  3  Ex. 
772  (action  at  law)  ;  Bailey  v.  Clark 
(1902),  1  Ch.  649  (injunction). 

See,  also,  cases  collected  in  10  Am. 
&  Eng.  Ann.  Cas.  487,  note,  773,  note; 
14  Harvard  Law  Review,  485;  18 
Harvard  Law  Review,  149;  22  Har- 
vard Law  Review,  276  and  544.  See 
further,  in  this  connection,  Straight  v. 
JHover,  79  Ohio  St.  263,  87  N.  E.  174, 
22  L.  R.  A.,  N.  8.,  276;  Ferguson  v. 
Firmenich  Co.,  77  Iowa,  576,  14  Am. 
St.  Rep.  319,  42  N.  W.  448;  Hayes  v. 
Waldron,  44  N.  H.  580,  84  Am.  Dec. 
105;  Strobel  v.  Kerr  Co.,  164  N.  Y. 
303,  79  Am.  St.  Rep.  643,  58  N.  E. 
142,  51  L.  R.  A.,  N.  S.,  687,  21  Morr. 
Min.  Rep.  38;  Pennington  v.  Brinsop 
Co.,  L.  R.  5  Ch.  D.  769 ;  Bowling  Coal 
Co.  v.  Ruffner,  117  Tenn.  180,  100  S. 
W.  116,  9  L.  R.  A.,  N.  S.,  923,  10 
Ann.  Cas.  581 ;  Beach  v.  Sterling  Co., 
54  N.  J.  Eq.  65,  33  Atl.  286;  West- 
ern Paper  Co.  v.  Pope,  155  Ind.  394, 
57  N.  E.  719,  56  L.  R,  A.,  N.  S.,  899. 

But  see  Helfrich  v.  Catonsville  Co., 
74  Md.  269,  28  Am.  St.  Rep.  245,  22 
Atl.  72,  13  L.  R.  A.  117;  McEvoy  v. 
Taylor,  56  Wash.  357,  105  Pac.  851; 
Barnard  v.  Sherley,  135  Ind.  547,  41 
Water  Rights — 36 


Am.  St.  Rep.  454,  34  N.  E.  600,  35  N. 
E.  117,  24  L.  R.  A.  568;  Pa.  Coal  Co. 
v.  Sanderson,  infra,  sec.  650;  Salem 
Co.  v.  Hyland,  74  Ohio  St.  160,  77  N. 
E.  751. 

Western  authorities  upon  pollution 
under  the  common  law  of  riparian 
rights  are  few. 

7  Schwab    v.    Smuggler   Union   etc. 
Co.  (Colo.),  174  Fed.  305,  98  C.  C.  A. 
160. 

8  Supra,  sec.  310. 

9  See  Hill  v.   King,   8   Cal.   336,   4 
Morr.  Min.  Rep.  533,  and  Bear  R.  Co. 
v.  New  York  Mining  Co.,  8  Cal.  327, 
68  Am.  Dec.  325,  4  Morr.  Min.  Rep. 
526,  in  which  this  difference  between 
the  common  law  and  the  law  of  ap- 
propriation is  discussed.     The  former 
represents  the  law  of  appropriation; 
the  latter    (as   between   two   riparian 
miners)    the  common  law  of  riparian 
rights,  and  tries  to  apply  the  rules  of 
correlative  use  to  appropriators.     Hill 
v.  King,  however,  represents  the  pre- 
vailing law  of  exclusive  right  to  the 
prior    appropriator    as    between    two 
miners.    See  this  discussed  supra,  sec. 
310. 


562  (3ded.)    Pt.  III.    THE  LAW  OF  PEIOE  APPEOPRIATION.     §§525,526 
(3d  ed.) 

§  525.  Materiality  of  Interference. — The  prior  appropriator 
having  an  independent  and  exclusive  right,  any  material  inter- 
ference therewith  is  wrongful,  however  reasonable  it  might  have 
been  between  riparian  owners.  The  rules  of  the  common  law  con- 
cerning reasonableness  have  no  application.  The  question  is 
whether  the  fitness  of  the  water  for  the  purpose  of  the  prior 
appropriator  is  substantially  or  materially  lessened  to  any  degree 
at  all.10 

In  practice,  very  little  latitude  is  allowed  either  at  common  law 
or  under  the  law  of  appropriation  when  pollution  interferes  with 
farming  or  domestic  use;  still,  upon  principles  of  law  as  distin- 
guished from  questions  of  fact,  the  common-law  rule  is  more 
liberal  in  allowing  (aside  from  cases  of  domestic  or  "natural" 
uses)  a  "reasonable"  interference  between  riparian  owners  (for 
example,  between  two  riparian  miners),  while  the  law  of  appro- 
priation upon  principle  allows  none  at  all  against  the  prior  ap- 
propriator. 


(3d  ed.) 

§  526.     Same. — The  following  are  some  examples  of  what  has 
been  held  an  unlawful  deterioration  of  the  quality  of  the  water 


10  Supra,  sec.  131,  exclusive  right; 
and  infra,  sec.  450. 

The  burden  of  showing  the  materi- 
ality of  the  interference  is  upon  the 
plaintiff,  as  is  the  ultimate  burden  of 
proof  in  any  suit,  and  consequently, 
for  example,  a  placer  miner  can  have 
no  action  where  later  comers  above 
muddy  the  stream,  but  still  leave  it 
fit  for  his  purpose.  Atchison  v.  Peter- 
son, 87  U.  S.  507,  22  L.  Ed.  414,  1 
Morr.  Min.  Eep.  583;  Bear  River  Co. 
v.  New  York  Co.,  8  Cal.  327,  68  Am. 
Dec.  325,  4  Morr.  Min.  Rep.  526; 
Butte  etc.  Co.  v.  Vaughn,  11  Cal.  143, 
70  Am.  Dec.  769,  4  Morr.  Min.  Rep. 
552;  Phoenix  etc.  Co.  v.  Fletcher,  23 
Cal.  481,  15  Morr.  Min.  Rep.  185; 
Hill  v.  Smith,  27  Cal.  476,  4  Morr. 
Min.  Rep.  597 ;  Montana  etc.  Co.  v. 
Gehring,  75  Fed.  384,  21  C.  C.  A. 
414. 

In  Hill  v.  Smith,  27  Cal.  476,  at 
484,  4  Morr.  Min.  Rep.  597,  the  court 
says:  "It  may  be  that  a  slight  dimi- 
nution or  deterioration  will  impair  his 
use  of  the  water,  and  it  may  be  that 
such  use  would  not  be  impaired  by  a 


very  considerable  reduction  in  quan- 
tity or  quality.  The  question  must 
be  determined  in  view  of  the  use  to 
which  the  water  is  applied  and  the 
other  circumstances  developed  by  the 
testimony."  Concerning  this  case  see, 
further,  supra,  sec.  310. 

In  this  connection  says  Lindley  on 
Mines,  second  edition,  section  841 : 
"While  the  privilege  of  depositing  such 
tailings  in  the  streams  must  be  reason- 
ably exercised,  and  so  as  not  to  ma- 
terially impair  or  destroy  rights  ac- 
quired by  a  lawful  prior  appropriator, 
yet  to  say  that  the  discharge  of  such 
tailings  is  a  nuisance  per  se,  or  to  re- 
strict it  within  unreasonable  limits,  is 
to  interdict  the  prosecution  of  a  lawful 
enterprise  and  practically  to  confiscate 
property  of  inconceivable  value. 
Should  any  such  stringent  rule  be  in- 
voked in  regard  to  either  quartz  or 
hydraulic  mining,  the  industry  would 
be  abandoned,  awaiting  the  advent  of 
the  magician  who  will  separate  gold 
and  silver  from  the  earth  and  rocks 
without  the  aid  of  water." 


§527  Ch.23.     POLLUTION.  (3d  ed.)  563 

against  prior  appropriators :  If  a  later  miner  so  muddies  a  stream 
that  it  cuts  the  hose  of  prior  hydraulic  miners  below ; u  if  one 
miner's  tailings  clog  a  prior  miner's  tail-race,12  or  fill  a  prior 
appropriator's  ditch;13  if  sawdust  is  thrown  into  a  stream;14  if 
one  pollutes  water  with  oil  so  that  it  kills  cattle.15  Rendering 
the  water  dangerous  to  health  is  a  crime.16  Injunctions  against  pol-  * 
lution  are  granted,  for  example,  where  the  pollution  is  caused  by 
sewage,17  or  by  location  of  a  cemetery  on  higher  ground,18  or  by 
gasworks.19  Pollution  is  classed  as  a  nuisance.20 

(3d  ed.) 

§  527.     Mining   Debris. — In    Pennsylvania 21    an    exception   is 

made  in  favor  of  miners  to  the  use  of  streams  to  carry  off  waste, 
as  against  agriculturists  upon  the  stream  below.  In  California 
an  early  attempt  was  made  to  establish  that  principle,  and  in 
some  cases  22  it  was  held  that  a  channel  is  a  natural  outlet  for  the 
discharge  of  tailings  by  all  miners,  without  liability  therefor. 
But  it  was  soon  settled  that  the  law  does  not  recognize  any  such 
right  to  a  channel  merely  as  a  way  of  necessity,23  and  that  no 
partiality  is  given  to  miners.24  Consequently  injunctions  were 
granted  against  mining  in  the  following  cases  because  it  mate- 

11  Hill    v.    Smith,    27    Cal.    476,    4  20  Crane  v.  Winsor,  2  Utah,  248,  11* 
Morr.  Min.  Rep.  597.  Morr.  Min.  Rep.  69. 

12  Gregory  v.  Harris,  43  Cal.  39,  14  21  Sanderson  v.   Pennsylvania  Coal 
Morr.  Min.  Rep.  91.  Co.,  86  Pa.  401,  27  Am.  Rep.  711,  11 

ia  T  V.  •       n  'ia  rui    soa    QI  Morr.    Min.    Rep.    60,    102    Pa.    370; 

13  Logan  v.  Driscoll   19  Cal.  623   81  Pe         lvania  &&  Co/V-  Sanders0n,  94 
Am    Dec.  90,  6  Morr    Mm    Rep    172;  J      ^  > 
Junkens  v.  Bergm,  67  Cal.  267,  7  Pac.  Min    ^    ^   m   ^     ^   5?   Am 

Rep.  445,   6  Atl.  453.     The  case  has 

14  Phoenix  etc.  Co.  v.  Fletcher,  23  been    usually    criticised.      See    infra, 
Cal.  481,  15  Morr.  Min.  Rep.  185.  sec   559. 

15  Benjamin  v.   Gulf   Ry.,   49   Tex.  22  Sims  v.  Smith,  7  Cal.  148,  68  Am. 
Civ.  App.  473,  108  S.  W.  408.  Dec.    233,    13    Morr.   Min.   Rep.    161; 

16  Tnfra    SPP    fi^8  Bear  River  etc.  Co.  v.  Xew  York  etc. 

17  ,r ,11         «!       -e   v    v     *   AT.-K  Co.,   8   Cal.   327,   68   Am.   Dec.   325,  4 

"  i?d°rl-  oo  xr  °w    inZn.   PonrilP      Morr-  Min-  ReP-  526'     Compare  Yun- 
(Unof  )    ,63    92  N    W.  104Q;  Peopl        ker        Nicholsf  1  Colo<   551*   8   Morr. 

ex    rel.    Lmd    v     City    of    San    Luis      Min.  Rep.  64    ;wpra>  sec.  223. 
Obispo,    116   Cal.    617,   48   Pac     723;  ^  Es£ond'v   ^      15  Cal    137    5 

Peterson  v    Santa  Rosa,  119  Cal    387       Morr    Mifl  ^    '  WixoQ  y    B^r 

S*?^5'  i5g  A^  £ ^  onrtV'  9fi  7Q  T  Eiver  etc-  Co.,  24  Cal.  367,  85  Am. 
Guthrie,  18  Okl.  32,  90  Pac.  26,  9  L.  D  &Q  -.  M  '  M}  R  >  .  T 

R.  A.,  N.  S.,  1150,  11  Ann.  Cas.  581.  £5d!^  Mille"'34  Cal    231    91  Am" 

18  Jung  v.  Neraz,  71  Tex.  396,  9  S.  Dec<    QQ2,    12    Morr.    Min"   Rep.    232;' 
W.  344.  Stone  v.  Bumpus,  40  Cal.  428,  4  Morr. 

19  Beatrice  Gas  Co.  v.  Thomas,  41  Min.  Rep.  271;  Gregory  v.  Harris,  43 
Neb.  662,  43  Am.  St.  Rep.  711,  59  N.  Cal.  38,  14  Morr.  Min.  Rep.  91. 

W.  925.  24  Supra,  sees.  85,  307. 


564  (3d  ed.)    Pt.  III.     THE  LAW  OF  PRIOR  APPROPRIATION.          §  527 

rially  injured  prior  appropriators  (or  landowners)  who  were 
engaged  in  agriculture ;  sluice  mining ; 25  hydraulic  mining.1  In 
a  recent  case  concerning  quartz  mining2  it  is  said:  "Believing 
that  the  quartz  and  granite  can  be  pulverized  and  the  tailings 
impounded  by  the  construction  and  maintenance  of  a  proper  dam, 
the  decree  of  the  lower  court  will  be  reversed,  and  one  entered 
here  perpetually  restraining  the  defendant,  its  agents  and  ser- 
vants, from  the  further  operation  of  its  mill  until  it  has  made 
suitable  provision  to  prevent  injury  to  plaintiff's  irrigating 
ditches,  and  to  the  water  used  by  him  from  the  creeks  for  house- 
hold and  for  stock  purposes." 

Some  other  cases  enjoining  pollution  by  mining  by  a  subsequent 
appropriator  are  given  in  the  note.3  In  Robinson  v.  Black  Dia- 
mond Coal  Co.4  debris  from  coal  mining  was  carried  far  down 
stream  and  there,  when  the  stream  overflowed,  covered  agricul- 
tural ground.  The  court  there  said  that  the  long  distance  made 
no  more  difference  than  if  the  debris  had  been  dumped  on  the 
fields  after  being  carried  there  by  carts  or  cars.5 

The  right  to  the  use  of  a  stream  for  depositing  debris  from 
mines  is  discussed  by  Judge  Lindley.6  Many  cases  from  the 
various  States  of  the  Union  are  cited  and  discussed  by  the  author. 
He  closes  his  text  as  follows:  "No  positive  rule  of  law  can  be 
laid  down  to  define  and  regulate  such  use  with  entire  precision. 

25  Levaroni  v.  Miller,  34  Cal.  231,  2  Brown  v.  Gold  Coin  etc.  Co.,  48 

91  Am.  Dec.  691,  12  Morr.  Min.  Rep.  Or.  277,  86  Pac.  361. 

232;   County  of  Sierra  v.  Butler,  136  3  Carson  v.   Hayes,   39   Or.   97,   65 

Cal.  547,  69  Pac.  418;  County  of  Yuba  pac.  814.  Golden  etc.  Co.  v.  Superior 

v.  Kate  Hayes  etc.  Co.,  141  Cal.  360,  Court,    65    Cal.   187,   3   Pac.   628    (by 

74    Pac.    1049 ;    McCarthy    v.    Gaston  hydraulic  mining)  ;   Eureka  Lake  etc. 

etc.  Min.  Co.,  144  Cal.  542,  78  Pac.  7.  Co.  v.  Superior  Court,  66  Cal.  311,  5 

Bee,    also,    Salstrom    v.    Orleans    Min.  pac<   490    (hydraulic   mining)  ;    Mon- 

Co.,  153  Cal.  551,  96  Pac.  292,  discuss-  tana  etc.  Co.  v.  Gehring   (Mont.),  75 

Ing  also  the  measure  of  damages  for  Fed.  384,  21  C.  C.  A.  414;  Humphreys 

pollution.  T.    Co.    v.   Frank,    46    Colo.    524,   105 

l  Logan  v.  Driscoll,  19  Cal.  623,  81  pac.  1093   (mine  water). 

Am.  Dec.  90    6  Morr.  Min    Rep    172 ;  4  g     c  ,   4 
People  v.  Gold  Run  etc.  Co.,  66  Cal. 

138,   56   Am.   Rep.   80,   4   Pac.    1152;  5  Mr-    Justice    Ailshie,    in    Hill    v. 

Hobs  v.  Amador  etc.  Co.,  66  Cal.  161,  Standard  Min.  Co.,  12  Idaho,  223,  85 

4  Pac.  1147 ;  County  of  Yuba  v.  Cloke,  Pac-  907>  distinguishes  between  pollu- 

79   Cal.   239,   21   Pac.   740;    Miller  v.  tion  of  the  Quality  of  the  water  as  a 

Highland  Ditch  Co.,   87   Cal.  430,   22  fluid,   ancl   filling  up   the   bed   of   the 

Am.  St.  Rep.  254,  25  Pac.  550;  Wood-  stream  by  dumping  material  in  it  and 

ruff  v.  North  Bloomfield  Co.,  18  Fed.  making    it    overflow.     See    Tennessee 

753,    9    Saw.    441;    United    States    v.  etc-  Co-  v-  McMillan,  161  Ala.  130,  49 

North   Bloomfield   Co.,   81    Fed.    243;  South.  880. 

North  Bloomfield  v.  United  States,  88  6  2  Lindley  on  Mines,  sec.  840. 
Fed.  64,  32  C.  C.  A.  84. 


§528  Ch.23.     POLLUTION.  (3ded.)  565 

As  to  this  all  courts  agree.  It  is  a  question  of  fact  to  be  deter- 
mined by  the  jury." 

In  a  recent  case  it  is  said:  "We  do  not  mean  to  say  that  the 
agriculturist  may  captiously  complain  of  a  reasonable  use  of 
water  by  the  miner  higher  up  the  stream,  although  it  pollutes 
and  makes  the  water  slightly  less  desirable,  nor  that  a  court  of 
equity  should  interfere  with  mining  industries  because  they  cause 
slight  inconveniences  or  occasional  annoyances,  or  even  some 
degree  of  interference,  so  long  as  such  do  no  substantial  damage, 
but  to  permit  a  subsequent  appropriator  to  so  pollute  or  burden 
the  stream  with  debris  as  substantially  to  render  it  less  available 
to  the  prior  appropriator  causes  him  to  lose  the  rights  he  gained 
by  appropriation  as  readily  as  would  the  diversion  of  a  portion 
of  the  water  which  he  appropriated."7 

As  a  result  of  the  California  cases  on  hydraulic  mining,  Con- 
gress has  prohibited  it  in  California  on  the  ground  of  interfer- 
ence with  the  navigability  of  the  Sacramento  and  San  Joaquin 
Rivers,  making  it  a  misdemeanor  unless  under  permission  from 
the  "Debris  Commissioner."8  This  prohibition  is  made  to  extend 
to  whatever  the  words  "hydraulic  mining"  or  "mining  by  the 
hydraulic  process"  meant  in  1893  when  the  act  was  passed. 
Whether  it  would  prohibit  such  things  as  working  over  tailings 
or  dumps  or  other  artificial  banks  of  earth  by  water  under  pres- 
sure is  not  clear.9  It  has  been  held  that  a  permit  from  the 
commissioner  does  not  relieve  from  liability  for  damage  or  pollu- 
tion, though  the  works  be  carried  on  in  strict  compliance  with 
the  directions  of  the  commissioner.  An  injunction  may,  never- 
theless, be  granted.10 

(3d  ed.) 

§  528.  Priority. — We  have  been  considering  the  question  from 
the  view  of  injury  to  the  prior  appropriator.  The  principles  on 
which  the  law  of  appropriation  rests  should  apply  with  equal 

7  Arizona    Copper   Co.    v.    Gillespie  seq.,  such  work  would  clearly  be  within 
(Ariz.),     100     Pac.     465.      See     Me-  the  act.   If  emphasis   is   laid  on   the 
Carthy  v.  Bunker  Hill  etc.  Co.  (Idaho,  word  "mining,"  it  might,  perhaps,  not. 
1908),  164  Fed.  927,  92  C.  C.  A.  259.  The  effect  of  the  act,  and  the  question 

,         of  pollution  as  applied  to  mining  are 

8  27  Stats,  at  Large,  507    the  sub-       diB£Med    at    j*^    in    Lindle*    on 

stance  of  which  is  given  in  Part  VIII  m  8econd  edi*.  gection  fa  t 
below  m  the  collection  of  Federal  seq. ;  Pomeroy  on  Riparian  Rights,  sec- 
statutes.  tion  fg 

9  If  emphasis  is  laid  on  the  words  10  County     of     Sutter     v.     Nichols 
"hydraulic  process,"  as  in  Lindley  on       (1908),  152  Cal.  688,  93  Pac.  872.  15 
Mines,  second  edition,  section  848  et      L.  R.  A.,  N.  S.,  616,  14  Ann.  Gas.  900. 


566   (3ded.)    Pt.  III.     THE  LAW  OF  PKIOE  APPROPRIATION.          §528 

force  where  the  case  is  reversed,  and  the  injury  is  to  the  subse- 
quent claimant.  If  the  prior  claimant  appropriated  the  stream 
on  public  land  for  the  purpose  of  depositing  tailings,  sawdust  or 
other  material  in  it,  and  so  used  the  water  at  the  time  the  subse- 
quent claimant  arrived,  the  continuance  of  the  pollution  of  the 
stream  should  be  lawful  as  one  of  the  characteristics  in  which 
the  law  of  appropriation  is  a  departure  from  the  cojnmon  law  of 
_jeiparian  rights.  It  was  so  held  in  Sims  v.  Smith.11  It  is  similar 
in  principle  to  O'Keiffe  v.  Cunningham,12  where  it  is  said  that 
tailings  can  be  deposited  on  public  land  by  a  prior  appropriation 
(i.  e.,  location)  of  the  land  for  that  purpose,  and  Jacob  v.  Day,13 
where  it  was  held  that  tailings  can  be  "rushed"  across  land  in  a 
ditch,  if  the  ditch  was  on  the  land  while  public,  prior  in  time 
to  the  title  of  the  occupant  of  the  land.  There  is  no  distinction  in 
principle  between  the  right  acquired  by  priority  to  deposit  tail- 
ings on  public  land,  rush  them  in  a  ditch  on  public  land,  or  de- 
posit them  in  streams  on  public  land.  They  are  equally  rights 
to  which  exclusive  use  should  be  acquired  by  priority  on  public 
lands.14 

How  far  priority  will  sanction  the  pollution  is,  however,  left  in 
doubt  by  the  "Debris  Cases,"  holding  that  hydraulic  mining  was 
a  public  nuisance  in  those  cases,  and  that  the  right  to  continue  a 
public  nuisance  could  not  be  maintained  under  a  claim  of  either 
priority  or  prescription.15  Following  this,  pollution  has  been 
declared  to  be  a  public  nuisance.16  In  People  v.  Elk  River  etc. 
Co.17  pollution  of  a  stream  was  said  to  be  a  public  nuisance  if  it 
interferes  with  use  by  a  considerable  number  of  persons  on  the 
banks  of  a  stream  though  non-navigable. 

In  a  Colorado  case  18  tailings  from  a  stamp-mill  were  enjoined 
at  the  suit  of  a  power  company,  though  to  some  extent  at  least 

11  7  Cal.  148,  68  Am.  Dec.  233,  13  ex  rel.  Ricks  v.  Elk  River  etc.  Co.,  107  \ 
Morr.  Min.  Rep.  161.  Cal.  214,  48  Am.  St.  Rep.  121,  40  Pac.  , 

12  9   Cal.    589.   9   Morr.   Min.   Rep.  486    (a   dairy) ;    People  ex  rel.   Ricks 
451.  v.  Elk  River  etc.  Co.,  107  Cal.  221,  48 

13  111  Cal.  571,  44  Pac.  243.  Am.    St.    Rep.    125,    40    Pac.    531    (a 

14  Consider  Sullivan  v.  Jones  (Ariz.),  sawmill)  ;  Arizona  etc.  Co.  v.  Gillespie 
108  Pac.  476,  a  quarrel  between  sheep-  (Ariz.),  100  Pac.  465.     See  McCarthy 
men  on  public  land.  v.   Bunker   Hill  etc.   Co.    (1908),   164 

15  See  cases  cited  above,  and  People  Fed.  927,  92  C.  C.  A.  259. 

v.  Gold  Run  etc.  Co.,  66  Cal.  138,  56  17  c-    d  .      h  di       _ote 

Am.  Rep.  80,  4  Pac.  1152;  Woodruff  )te> 

v.  North  Bloomfield  Co.,  18  Fed.  801,          18  Suffolk   etc.    Co.   v.    San    Miguel 

9  Saw.  441,  especially.  etc.  Co.,  9  Colo.  App.  407,  48  Pac.  828. 

fi6  Conrad  v.   Arrowhead  etc.   Hotel  rommented  upon  in  Humphreys  T.  Co. 

Co.,  103  Cal.  399,  37  Pac.  386;  People  v.  Frank,  46  Colo.  524,  105  Pac.  1093. 


§528  Ch.23.     POLLUTION.  (3ded.)  567 

the  stamp-mill  had  discharged  tailings  into  the  stream  before  the 
power  company  began.  (The  number  of  stamps  thereafter,  how- 
ever, had  been  increased.)  In  a  recent  Idaho  case  it  was  held 
that  no  prescriptive  right  to  pollute  can  arise  because  it  is  a  con- 
tinuous injury.19  Idaho  has  a  constitutional  provision 20  that 
appropriations  for  mining  in  mining  districts  shall  take  prece- 
dence over  those  for  agriculture.  The  same  case  held  that  the 
preference  to  mining  in  the  Idaho  constitution  has  no  applica- 
tion to  questions  involving  pollution  of  streams.21  The  miner  in 
this  case  had  a  priority  over  the  agriculturist  by  virtue  of  the 
constitution;  hence  this  is  a  decision  that  priority  cannot  sanc- 
tion pollution.  In  a  Texas  case  enjoining  pollution  By  waste 
from  oil  wells,  it  was  held  no  defense  that  the  pollution  was  with- 
out negligence  and  the  natural  consequence  of  a  lawful  business.22 
It  has  been  held  in  California  that  the  utmost  care  cannot  excuse 
pollution.23 

In  Conrad  v.  Arrowhead  etc.  Hotel  Co.24  where  the  pollution 
consisted  in  refuse  from  a  hotel  and  not  mining  debris,  the  court 
states  the  rule  as  follows:  ''Locators  and  appropriators  of  the 
waters  of  a  stream  have  no  rights  antecedent  to  the  date  of  their 
location.  If  others  have,  prior  to  their  location,  decreased  the 
quantity  of  the  water  flowing  in  such  streams,  or  caused  a 
deterioration  of  its  quality,  the  subsequent  locator  cannot  com- 
plain. Familiar  examples  of  the  application,  of  this  rule  as  be- 
tween appropriators  are  of  frequent  occurrence  in  the  mining 
regions  of  this  State,  where  water  is  diverted  from  flowing 
streams,  upon  which  mining  has  destroyed  the  purity  of  the 
water.  In  such  cases  the  appropriator  takes  the  water  with  his 
eyes  open — takes  it  as  he  finds  it,  and  as  to  him  the  like  con- 
tinued deterioration  is  damnum  absque  injuria."  This  would 
seem  to  be  correctly  stated  upon  principle,  so  far  as  concerns  claim- 
ants taking  up  public  land  or  water  subsequent  to  the  commence- 
ment of  the  pollution.  But  so  far  as  the  writer  can  gather  from 

19  Hill    v.    Standard    etc.    Co.,    12  Eep.    445,    6    Atl.    453,    cited   supra. 
Idaho,  223,  85  Pac.  912.  Also  Humphreys  T.  Co.  v.  Frank,  46 

20  Art.  15,  sec.  3.  Colo.  524,  105  Pac.  1093. 

21  Semble     accord,      McCarthy     v.  23  Salstrom    v.    Orleans    Min.    Co. 
Bunker  Hill  etc.  Co.,  164  Fed.  927,  92  (1908),    153    Cal.    551,    96    Pac.    292, 
C.  C.  A.  259,  though  denying  injunc-  discussing  also   the  measure   of   dam- 
tion.  ages.     Compare    the    "smoke    cases," 

22  Tpel   v.    Rio   Bravo    Oil   Co.,    47  such   as   Bliss   v.   Anaconda   etc.   Co., 
Tex.   Civ.   App.    153,   104   S.   W.   423,  167  Fed.  342. 

disapproving  Pennsylvania  Coal  Co.  v.  24  103  Colo.  399,  37  Pac.  386. 

Sanderson,  113  Pa.   126,  57  Am.  St. 


568  (3d  e<L)    Pt.  III.     THE  LAW  OF  PRIOR  APPROPRIATION.          §  529 

the  decisions,  any  material  pollution  will  be  held  wrongful  against 
both  prior  and  subsequent  claimants.25 

Concerning  the  pollution  of  underground  waters,  some  refer- 
ences are  given  in  the  note.1 

A  right  to  pollute  may,  of  course,  exist  by  contract  as  between 
the  parties  thereto.2 

(3d  ed.) 

§  529.  Injunctions.  —  Further  authorities  and  discussion  will 
be  found  under  the  sections  upon  injunctions,3  as  some  of  the 
most  important  principles  of  equity  jurisdiction  upon  injunction 
have  arisen  out  of  the  conflict,  in  regard  to  pollution,  between 
mining  men  and  agriculturists. 

A  few  other  matters  may  be  also  mentioned. 

If  settling  tanks  can  be  arranged  to  catch  debris,  injunction 
against  pollution  may  be  modified  to  permit  experiments  for 
building  them.4  Quwre,  whether  a  municipality  can  condemn 
water-rights  on  a  stream  for  the  purpose  of  polluting  it  with 
sewage.5 

How  far  the  rights  of  strangers  to  a  suit  are  material  in  a  case 
has  given  rise  to  great  conflict  in  connection  with  pollution.  At 
law  it  is  perfectly  settled  th~at  only  the  rights  of  defendant  and 
plaintiff  can  be  regarded,  and  the  court  cannot  consider  injury 
to  others  who  have  not  taken  part  in  the  suit.6  But  where  the 

25  Concerning   pollution,   see   Bulle-  W.  203,  13  L.  R.  A.,  N.  S.,  1063,  16 

tin   152,  Water  Supply  Paper,  U.   S.  Ann.  Cas.   673.     See  19  L.  R.  A.  95, 

Geol.  Survey.  note;     Ballentine    v.     Public    Service 

l  Kinnaird  v.  Standard  Oil  Co.,  89  Corp.,  76  N.  J.  L.  358,   70  Atl.   167. 

Ky.  468,  25  Am.  St.  Rep.  545,  12  S.  See,  also,  the  note  in  123  Am.  St.  Rep. 

W.  937,   7  L.  R.   A.   451;   Ballard  v.  574. 

Tomlinson,  29   Ch.  D.   115    122    126;  ,  gchwab          g                  Uni(m 

Sherman    v.    Fall    River    etc.    Co.,    5  r      ,„,    .     ,„.  ^   ,  s* 

Allen  (Mass.),  213;  Alston  v.  Grant,  <£•  (Lol°-),  174  Fed.  305,  98  C.  C.  A. 
3  El.  &  Bl.  128;  Turner  v.  Mirfield,  34 

Beav.   390;   Womersley  v.  Church,   17  3  Infra,  sec.  650. 


''-A«*f  4  Arizona    Copper    Co.    v.    Gillespie 

Jones  Eq  83,  78  Am  Dec.  241;  Green-  (  Pac    465.     See  Atchinson 

castle  vHazelett   23  Ind   186;  Wahle  *    Pete;          87  n.  s.  507    22  L<  Ed. 
v.  Reinbach,  76  111    322    326,  ;  Upjohn  ;  >      Jennison 

v    Richland  Township,  46  Mich.  549,  v_  £         gg  ^         ^  25     » 

41   Am.   St.  Rep.   178,   9  N.  W.  845;  .  Morr   Min   Reo   504 

Brown  v.  Illius,  27  Conn.  84,  71  Am.  l  Morr"  Min"  KeP'  &U4> 
Dec.   49;    Dillon  v.  Acme  Oil  Co.,  49          5  Village  of  Twin  Falls,  v.  Stubbs,) 

Hun  (N.  Y.),  565,  2  N.  Y.  Supp.  289;  15  Maho,  68,  96  Pac.  195. 
Barnard  v.  Sherley,  135  Ind.  547,  41  6  Infra,  sec.  626  et  seq.    E.  g.,  Long 

Am.  St.  Rep.  454,  34  N.  E.  600,  35  N.  v.  Louisville  etc.  Ry.,  128  Ky.  26,  107 
E.    117,    24   L.    R.    A.    568;    Long   v.  ,    S.  W.  203,  13  L.  R.  A.,  N.  S.,  1063, 

Louisville  etc.  Ry.,  128  Ky.  26,  107  S.  16  Ann.  Cas.  673. 


§530  Ch.23.     POLLUTION.  (3d  ed.)  569 

pollution  comes  within  criminal  statutes  (as,  for  example,  when 
injurious  to  health),  or  becomes  a  public  nuisance,  the  rights  of 
the  public  may  probably  be  considered  (though  no  public  officer 
appears  in  court)  even  at  law.7  At  all  events,  questions  of 
pollution  frequently  involve  the  public  interest  to  such  an  extent 
that  in  equity,  exercising  'its  extraordinary  jurisdiction  of  in- 
junction, such  outstanding  and  unrepresented  interests  are  some- 
times made  a  controlling  consideration  in  granting  or  refusing 
the  injunction.8 

Statutes  frequently  make  the  pollution  of  water  criminal.9 

(3d  ed.) 

§  530.     Conclusions. — The  following  appears  to  be  the  state  of 
the  authorities: 

(a)  Pollution  by  a  nonriparian  owner  to  the  impairment  of  the 
value  of  riparian  land  is  always  wrongful  at  common  law,  with- 
put  regard  to_jts  degree;  likewise  a  nonriparian  owner  cannot 
complain  of  pollution  by  a  riparian  owner.     Nonriparian  owners 
as  such  have  no  standing  in  court  at  common  law  so  far  as  they 
would  impair  the  land  or  restrict  the  use  of  a  riparian  owner. 

(b)  Pollution  by  one  riparian  owner  impairing  the  domestic 
use  of  another  riparian  owner  is  wrongful  at  common  law  with- 
out regard  to  its  degree,  because  domestic  uses  are  preferred 
uses  at  common  law;  but  where  domestic  use  is  not  involved, 
questions  of  pollution  between    riparian    owners    (for  example, 
two  riparian  miners)   are  to  be  governed  by  the  test  of  whether 
the  pollution  is  carried  to  an  excessive  degree  in  consideration 
of  the  equal  right  of  both  riparian  owners  to  make  a  reasonable 
use  of  the  stream. 

(c)  Under  the  law  of  appropriation,  pollution  by  a  subsequent 
appropriator  is  wrongful  if  it,  to  any  material  degree,  impairs 
the  use  of  the  prior  appropriator,  and  there  can  be  no  question 
involved  whether  the  impairment  is  unreasonable  or  excessive. 
There  must,  however,  be  an  actually  material  impairment,  and  of 
this  the  complainant  has  the  burden  of  proof. 

(d)  Under  the  law  of  appropriation,  upon  principle,  pollution 
by  a  prior  appropriator  against  a  subsequent  appropriator  would 

T  Supra,  debris  cases.  example,  •  Alaska,    Carter's   Annotated 

8  Infra,  sec.  648  et  seq.  '    Code  of  1900,  sees.  5,  33;  Cal.  Stats. 

9  See  infra,  sec.  658,  crimes.     For      1907,  p.  492;  Wyo.  Stats.  1907,  p.  44. 


570   (3ded.)    Pt.  III.     THE  LAW  OF  PRIOR  APPROPRIATION.          §530 

always  seem  damnum  absque  injuria,  if  it  existed  at  the  time  the 
subsequent  appropriation  was  made ;  but  the  weight  of  author- 
ity is  that,  on  the  ground  of  public  nuisance,  priority  will  not 
sanction  pollution  where  it  impairs  domestic  use  of  a  subsequent 
appropriator,  or  impairs  the  health  or  agriculture  of  a  com- 
munity subsequently  formed  upon  the  bank  of  the  stream, 
though  the  pollution  began  while  the  stream  was  upon  public 
land  before  the  community  was  formed. 

§§  531-535.     (Blank  numbers.) 


536  Ch.  24.     CONTRACTS— CONVEYANCES.  (3ded.)  571 


CHAPTER  24. 

ALIENATION  AND  DISPOSAL   OF   RIGHT— CONTRACTS- 
CONVEYANCES. 

A.     CONTRACTS  BETWEEN  PRIVATE  PARTIES  EXCLUSIVE  OP 
PUBLIC  SERVICE  COMPANIES. 

§  536.     Right  of  contract. 
§  537.    Subject  matter  of  water  contracts. 
§  538.     Contracts   (continued). 
§  539.     Assignment. 

§  540.     Contracts  with  public  service  companies   are  governed  by  special 
rules. 

B.     CONVEYANCES. 

§  541.  Water-rights  may  be  conveyed. 

§  542.  Formalities  on  transfer. 

§  543.  Subject  matter  «f  conveyance. 

§  544.  Construction  and  operation  of  conveyance. 

§  545.  Reservations. 

§  546.  Sales  of  uncompleted  works— After-acquired  property. 

§  547.  Sale  in  parts. 

§  548.  Lease  or  exchange  or  other  temporary  disposal. 

§  549.  Sales  of  "water-rights"  by  public  service  companies. 

C.     APPURTENANCE. 

§  550.  Whether  the  water-right  is  an  appurtenance  to  land. 

§  551.  Same. 

§  552.  Whether  passes  on  sale  of  land  when  appurtenant  thereto. 

§  553.  Upon  subdivision  of  land. 

§  554.  Appurtenance  (concluded). 

D.     PAROL  SALE. 

§  555.     Parol  sales  of  possessory  rights  on  the  public  domain. 
§  556.     Parol  sales  and  licenses  in  equity. 
§  557.     Conclusion. 
§§  558-565.     (Blank  numbers.) 

A.     CONTRACTS    BETWEEN    PRIVATE    PARTIES     (EXCLUSIVE    OF 

PUBLIC   SERVICE   COMPANIES). 
(3d  ed.) 
§  536.     Right  of  Contract. — A  reference  to  the  cases  at  large 

will  disclose  contracts  of  all  kinds  made  by  the  appropriators 
whereby  the  water  is  apportioned   between   them,  sold  or  dealt 


572  (3ded.)    Pt.  III.     THE  LAW  OF  PKIOB  APPROPRIATION.         §537 

with  like  other  property.  The  court  in  an  early  case1  says:  "It 
can  be  transferred  like  other  property."2  One  case  maybe 
stated  to  show  the  great  freedom  in  this  respect.3  A  homestead 
claimant  had  sold  a  water-right  of  appropriation  and  a  ditch 
appurtenant  to  the  land,  before  final  proceedings.  The  United 
States  statutes  prohibit  a  homestead  claimant  from  disposing  of 
his  land  before  he  acquires  full  title.  This  was  held  not  to  inter- 
fere with  the  sale  of  the  ditch  and  water-right  acquired  by 
appropriation.  A  similar  question  arose  in  another  case.4  It 
was  held  that  an  Indian  may  make  an  appropriation.  The 
United  States  statutes,  however,  forbid  the  sale  of  lands  by 
Indians.  The  court  seems  to  have  thought  that  the  sale  of  a 
water-right  was  not  within  this  prohibition. 

Beside  the  general  principles  considered  in  this  chapter,  refer- 
ence is  made  to  other  places  in  the  book  where  contracts  are  con- 
sidered in  particular  connections.5 

(3d  ed.) 

§  537.  Subject  Matter  of  Water  Contracts. — Where  a  contract 
concerns  water  in  a  reservoir,  ditch,  pipe,  or  other  waterworks 
or  structure  that  has  reduced  it  to  possession,  the  water  therein 
is  private  property,  the  subject  of  contract  as  a  corpus,  and  so 
far  as  it  is  property,  is  personal  property.6  Occasionally  con- 
tracts may  have  such  specific  water  as  their  subject  matter.  A 
contract  with  a  house-supply  company  in  a  city  is  an  example  of 
this,  the  substance  itself  (as  a  liquid)  being  the  subject  of  the 
contract,  and  a  contract  with  such  a  company,  so  far  as  it  is  one 
of  sale,7  is  for  the  sale  of  personal  property.8  Other  illustrations 

1  McDonald  v.  Bear  R.  Co.,  13  Cal.      1062,  holding  contra  as  to  a  sale  for 
220,  at  233,   1   Morr.  Min.  Rep.   626.      power  use. 

In    Washington    (Pierce's    Code,    sec.  4  Lobdell  v.  Hall,  3  Nev.  507. 

5136)  almost  identical  words  are  used.  5  Contracts       concerning       ditches, 

2  See  People's  Ditch  Co.  v.  Fresno  supra,    sec.    458.      Contracts    with    ri- 
Canal  Co.  (1907),  152  Cal.  87,  92  Pac.  parian  owners,  infra,  sec.  844  et  seq. 
77;  Fresno  Canal  Co.  v.  Park,  129  Cal.  Contracts  by  water  users'  associations, 
437,  62  Pac.   87;   Barkley  v.  Tieleke,  infra,   sec.    1415.      Of   irrigation    dis- 
2  Mont.  59;   Thompson  Co.  v.  Penne-  tricts,   infra,   sec.    1356    et   seq.      Be- 
baker    (Wash.).   173   Fed.   849,  97   C.  tween  tenants  in  common,  supra,  sec. 
C.  A.  591,  citing  the  second  edition  of  320.     Concerning    percolating    water, 
this  book.  infra,  sec.  1172.     See,  in  general,  the 

3  Mt.   Carmel   etc.   Co.  v.   Webster,  index  at  the  end  of  the  book. 
140  Cal.  183,  73  Pac.  826.    See  Village  «  Supra,  sees.  30  et  seq.,  35. 

of  Hailey  v.  Riley,  14  Idaho,  481,  95  7  Primarily    it    is    a    contract    of 

Pac.  686,  17  L.  R.  A.,  N.  S.,  86,  hold-  service    rather   than   of   sale.      Infra, 

ing  similarly  as  to  a  desert  entryman  sec.   1324. 

after  final  proof.    But  see  Cascade  etc.  8  People  ex  rel.  Heyneman  v.  Blake, 

Co.  v.   Railsback    (Wash.),    109    Pac.  19  Cal.  595,  Field,  J.,  quoted  supra, 


§537  Ch.  24.     CONTRACTS— CONVEYANCES.  (3ded.)  573 

may  be  instanced.  Thus,  if  one  artificially  manufactures  water 
from  oxygen  and  hydrogen,  and  leads  it  in  a  ditch  from  the 
factory  to  a  bottling  works,  and  contracts  with  me  about  the 
water  in  the  ditch,  it  is  obviously  a  contract  concerning  personalty. 
So  if  one  has  a  spring  of  medicinal  waters  and  collects  the  water 
in  a  reservoir  preparatory  to  bottling,  and  contracts  to  sell  one 
reservoir  full,  it  would  be  a  sale  of  personal  property.  Likewise, 
if  he  sells  me  so  many  gallons  from  the  reservoir  measured  by  a 
meter.  The  specific  particles  sold  could  be  marked  and  set  aside. 
The  very  body  of  water  in  the  reservoir  at  time  of  purchase  may 
have  peculiar  mineral  properties  not  again  occurring,  so  that  the 
purchaser  desires  just  that  very  water.  In  such  supposable 
cases  it  is  the  corpus  of  water,  a  specific  body  of  the  substance 
in  specie,  that  is  contracted  about. 

But  such  situations  are  unusual.  Contracts  for  irrigation  or 
water-power  or  similar  uses  usually  have  in  view  a  natural 
stream,  and  then  the  usufructuary  "water-right"  in  the  stream 
(and  not  the  water  itself)  alone  constitutes  private  property;  the 
water  itself  therein  cannot  be  the  subject  of  contract  because  it  is 
not  the  subject  of  ownership.9  Contracts  between  private  par- 
ties 10  for  irrigation  usually  deal  with  ' '  water-rights ' '  or  the  ' '  usu- 
fruct," or  continual  flow  and  use  of  the  natural  stream  as  a 
natural  water  resource.  While  the  city  supply  water  company 
above  considered  sells  the  householder  only  so  many  gallons  or 
cubic  feet  of  liquid  measured  by  a  meter,  not  professing  to  grant 
a  perpetual  flow  from  a  natural  stream,  nor  to  confer  upon  the 
householder  any  "water-right,"  on  the  other  hand,  if  the  man 
above  supposed,  who  bought  a  reservoirful  of  mineral  water,  buys 
instead  (as  he  usually  does)  the  right  to  have  the  mineral  water 
flow  from  the  spring  which  supplies  the  reservoir,  he  would  be 
contracting  concerning  the  water-right — concerning  realty  and 
not  personalty.  As  a  general  principle,  it  is  the  water-right 
which  irrigation  and  similar  contracts  have  for  their  subject 

sec.    35;     Spring    Valley    W.    W.    v.  v.  Indiana  etc.  Co.,  120  Ind.  575,  22 

Schottler,   110  U.   S.   347,  4   Sup.  Ct.  N.  E.   778,  6  L.  R.  A.  579;   People's 

Rep.  48,  28  L.  Ed.  173,  quoted  supra,  Gas   Co.   v.   Tyner,   131   Ind.   277,   31 

sec.  33;  Hesperia  etc.  Co.  v.  Gardner,  Am.  St.  Rep.  433,  31  N.  E.  59,  16  L. 

4  Cal.  App.  357,  88  Pac.  286.     Com-  R.  A.  443,  17  Morr.  Min.  Rep.  481. 

pare  Carothers   v.   Phil.   Co.,   118   Pa.  9  Supra,  c.  1. 

468,  12  Atl.  314;  Ohio  Oil  Co.  v.  In-  10  Regarding  this   question  in  con- 

diana,  177  U.  S.  190,  20  Sup.  Ct.  Rep.  tracts    with    public    service    irrigation 

576,  44  L.  Ed.  729.  20  Morr.  Min.  companies,  see  infra,  sec.  1324  et  seq. 
Rep.  466;  citing  State  ex  rel.  Corwin 


574  (3d  ed.)    Pt.  III.     THE  LAW  OF  PRIOR  APPROPRIATION.          §  538 

matter,  and  hence,  as  a  rule,  they  concern  real  'property  —  grant- 
ing an  interest  in  the  ditch  and  water-rights  of  the  grantor.11 
A  grant  of  a  water-right  involves  no  title  to  the  corpus  of  water 
in  a  natural  stream,  but  only  a  usufruct  —  the  right  to  the  flow 
and  use  of  the  stream.12 

Further  reference  is  specially  made  to  the  opening  chapters  of 
the  book. 

(3d  ed.) 

§  538.     Contracts     (Continued).  —  Appropriators    may     settle 

their  rights  by  contracts  ;  13  but  agreements  must  be  in  writing 
within  the  statute  of  frauds,14  unless  the  parol  agreement  was  in- 
tended to  be  permanent  and  has  been  executed,  or  there  has  been 
part  performance  such  as  will  take  the  case  out  of  the  statute  in 
equity.15  A  parol  license  if  unexecuted  or  if  not  intended  per- 
manent is  revocable,  and  is  revoked  by  death.16 

A  contract  being  to  supply  water  from  a  specific  canal,  failure 
of  the  supply  in  the  canal  from  natural  causes  relieves  the  canal 
owner  from  liability  for  the  failure  to  supply  the  water,17  and 
is  not  failure  of  consideration  such  as  to  allow  recovery  of  ad- 
vance payments  ;  18  but  it  would  be  otherwise  where  the  contract 
referred  to  no  specific  canal.19  Prevention  by  injunction  at  suit 

11  See  infra,  sec.  1324  et  seq.  14  Bree  v.  Wheeler,  4  Cal.  App.  109, 

12  Kidd   v.   Laird,   15   Cal.   161,   at  87  Pac.  255;  Schilling  v.  Rominger,  4 
180,   76  Am.  Dec.  472,  4  Morr.  Min.  Colo.  100;    Oliver  v.  Burnett   (1909), 
Rep.  571;  McDonald  v.  Askew,  29  Cal.  10  Cal.  App.   403,   102   Pac.   223.     A 
200,  at  207,  1  Morr.  Min.  Rep.   660  ;  parol  contract  to  furnish  water  "at  all 
Johnston  v.  Little  Horse  Co.,  13  Wyo.  times"   is  void   under   the   statute   of 
208,  J.10  Am.  St.  Rep.  986,  79  Pac.  22,  frauds   as  a   contract  not  to   be  per- 
70  L.  R.  A.  341  ;   Mayor  v.  Commis-  formed  within  a   year.     Metropolitan 
sioners,  7  Pa.  363.     In  Duckworth  v.  etc.   Co.   v.    Topeka   etc.   Co.    (Kan.), 
Watsonville  Co.,   150   Cal.  at  532,  89  132  Fed.  702. 

Pac.    338,    Mr     Justice    Shaw    said:  15  See  inf       see   555  et 

"The   claim   of   the   respondents   that 

the   grant  by  Mrs.   McKinley  of   the  See  *»/>»,  sec.  556. 

rights  pertaining  to  the  land  described  17  See  Fresno  Milling  Co.  v.  Fresno 

in  the  deeds  extended  only  to  the  water  Canal  etc.  Co.,  126  Cal.  640,  59  Pac. 

then  standing  in  the  lake,  and  that  as  140,    semble.      See   Evans   v.    Prosser 

soon  as  that  water  was  exhausted  by  etc.  Co.   (Wash.),  113  Pac.  271,  hold- 

use,  runoff  or  evaporation,  the  rights  ing,    however,    that    if    more    efficient 

ceased  to  exist,  is  utterly  baseless,  and  appliances  could  remedy  the  deficiency, 

needs   no    discussion   further    than   to  there  is  no  excuse. 


n 

(Cal.),     110     Pac.     927.     See,     also,       81  Neb.  641,  116  N.  W.  514. 

Booth  v.  Chapman,  59  Cal.  194;  Booth  19  Cf.  Wilson  v.  Alcatraz   Co.,   142 

v.  Trager,  44  Colo.  409,  99  Pae.  60.  Cal.  188,  75  Pac.  787  (oil)..    See  Red- 

13  Biggs  v.  Utah  etc.  Co..  7  Ariz.  water  Co.  v.  Jones  (S.  D.),  130  N.  W. 

331,  64  Pac.  494.  85. 


§538  Ch.  24.     CONTRACTS— CONVEYANCES.  (3d  ed.)  575 

of  a  third  party  does  not  excuse  for  breach  of  contract  to  furnish 
water.20 

A  contract  for  conveyance  of  a  "good  and  sufficient  water- 
right"  is  fulfilled  by  tender  of  certificates  in  a  mutual  irrigation 
company.21  Contracts  may  be  made  for  "developing"  under- 
ground water.22 

One  who  buys  a  right  to  a  specific  quantity  of  water  has, 
against  his  grantor,  unlimited  right  of  disposal  thereof,  and  may 
resell  it  to  others  in  whole  or  part,23  provided  the  grantor  is  not 
in  public  service.24  An  agreement  whereby  one  acquires  from 
another  the  right  to  a  specific  quantity  of  water  in  general  terms 
passes  a  right  as  between  the  parties  without  regard  to  the  use 
made  of  the  water.  The  covenantor  cannot  follow  the  water  after 
its  delivery  to  the  covenantee,  who  consequently  may,  when  not 
needing  all  himself,  license  use  of  the  surplus  to  his  neighbors  for 
a  rental.25  In  the  case  just  cited  it  is  said :  "As  he  had  purchased 
the  right  to  the  use  of  all  the  waters  conveyed  from  the  irrigation 
ditch,  he  was  entitled  to  an  unrestricted  control  over  that  use. 
He  was  not  limited  by  any  contract  with  defendant  upon  the  sub- 
ject. He  is  not  taking  any  more  water  than  he  purchased,  and 
is  not  using  himself  or  licensing  to  his  neighbors  more  than  he 
bought.  Having  purchased  the  use  of  a  given  quantity,  if  he 
cannot  use  it  all  himself,  we  see  no  reason  why  he  cannot  sell  the 
right  to  a  temporary  use  of  it  to  his  neighbors,  as  wanted,  for  a 
beneficial  purpose.  To  hold  that  he  cannot  do  so  would  be  to 
impose  a  restriction  for  which  no  warrant  is  found  in  the  agree- 
ment of  purchase,  and  would  be  in  effect  to  deprive  him  of  a 
valuable  incident  to  the  ownership  of  this  character  of  property, 
the  right  to  dispose  of  its  use  to  others  when  it  is  not  required 
for  use  by  the  owner  himself.  There  is  no  law  which  will  impose 
the  limitation  contended  for  by  appellant." 

20  Sample  v.   Fresno   etc.   Co.,   129          22  Painter  v.  Pasadena  Co.,  91  Cal. 
Cal.     222,     61     Pac.     1085.  •   Contra,      74>  27  Pac-  539  5   Roberts  v.  Krafts, 
Fresno    Milling   Co.   v.   Fresno    Canal  CaL  20>  74  Pac'  281< 

Co.,  126  Cal.  640,  59  Pac.  140,  under          23  Calkins  v.   Sorosis  etc.  Co.,   150 

.  .       .  Cal.  426,  88  Pac.  1096. 

express  provision  in  the  contract  tor 

such  excuse  24  Leavitt  v.  Lassen  Irr.  Co.  (1909), 

157  Cal.  82,  106  Pac.  404.    See  infra, 

21  Fairbanks   v.   Rollins    (Cal.),   54      sec    ^24  et  seq. 

Pac.  79.  See  Nampa  Irr.  Dist.  v  25  Calkins  v.  Sorosis  Fruit  Co.,  150 
Gesa,  17  Idaho,  552,  106  Pac.  993.  Cal.  426,  88  Pac.  1094. 


576  (3de<L)    Pt.  III.     THE  LAW  OF  PRICE  APPROPRIATION.          §539 

Some  miscellaneous  matters  regarding  contracts  are  given  in 
the  note.1 


(3d  ed.) 

§  539.  Assignment. — Covenants  concerning  water-rights  may 
run  with  the  land.2  A  personal  covenant  or  agreement  on  the 
part  of  a  water  company  (not  in  public  service)  to  supply  water 
will  be  binding  upon  a  new  water  company  purchasing  the  lands 
and  plant  of  the  old  company  with  notice.  The  agreement  is 
binding  in  equity  not  only  in  favor  of  the  original  eovenantee, 
but  in  favor  of  a  grantee  from  him.3 

Under  the  California  Civil  Code,  a  contract  may  create  a  lien 
for  rates  and  rentals  on  the  land  supplied  with  water,  which  will 


l  Rodgers  v.  Pitt,  129  Fed.  932 
(agreement  between  co-owners) ;  Brad- 
ley v.  Harkness,  26  Cal.  77,  11  Morr. 
Min.  Rep.  389  (partnership  in  ditches 
as  distinguished  from  tenancy  in 
common) ;  Cacne  etc.  Ditch  Co.  v. 
Hawley,  43  Colo.  32,  95  Pac.  317 
(ditch  company's  contract  to  supply 
reservoir  company  excess  of  water 
over  needs  of  ditch  company's  stock- 
holders held  illegal  as  requiring  a 
priority  to  do  double  duty) ;  Farmers' 
etc.  Co.  v.  Henderson  (Colo.  1909),  46 
Colo.  37,  102  Pac.  1063  (contract  to 
exempt  water-rights  from  corporation 
assessment  enjoined)  ;  Miller  v. 
Wheeler  (Wash.  1907),  54  Wash.  429, 
103  Pac.  641,  23  L.  R.  A.,  N.  S., 
1065  (agreement  regarding  use  of 
water  negatives  abandonment)  ;  Gag- 
non  v.  Molden,  15  Idaho,  727,  99  Pac. 
965  (breach  of  contract  to  convey 
water-right  where  price  is  payable  in 
installments)  ;  Mathieu  v.  North  Am. 
Co.  (1907),  119  La.  896,  121  Am.  St. 
Rep.  548,  44  South.  721,  and  Dunbar 
v.  Montgomery  (Tex.  Civ.  App.),  119 
S.  W.  907  (breach  of  contract  to 
furnish  water  for  irrigation,  public 
service  not  involved)  ;  Fuller  v.  Smith 
(1909),  156  Cal.  177,  103  Pac.  919 
(contract  for  sale  pending  litigation)  ; 
Ditch  Co.  v.  Marfell,  15  Colo.  307,  25 
Pac.  504,  and  San  Diego  Co.  T.  Sharp, 
97  Fed.  394,  38  C.  C.  A.  220  (contract 
for  water  from  year  to  year  is  ter- 
minable by  irrigator) ;  Quirk  v.  Rich, 
40  Mont.  552,  107  Pac.  821  (contract 


supersedes  right  under  general  law)  ; 
McElravy  v.  Brooks  (Colo.),  109  Pac. 
863  (rescission  by  mutual  consent,  im- 
provements inure  to  benefit  of  grant- 
or) ;  Shaw  v.  Profit  (Or.),  109  Pac. 
584  (any  benefit  to  promisor  is  suffi- 
cient consideration,  if  so  intended)  ; 
Farmers'  etc.  Co.  v.  Pawnee  etc.  Co., 
47  Colo.  239,  107  Pac.  286  (forfeiture 
enforced). 

See,  also,  Miller  v.  Cal.  Pastoral 
Co.,  163  Fed.  462,  90  C.  C.  A.  8; 
Great  Western  Co.  v.  White,  47  Colo. 
547,  108  Pac.  156;  Allen  v.  Swadley, 
46  Colo.  544,  105  Pac.  1097. 

By  statute  in  Wyoming,  voluntary 
settlements  of  water-right  disputes 
may  be  recorded  and  then  cannot  be 
attacked  after  ten  years.  Wyo.  Stats. 
1907,  p.  138  et  seq. 

2  Hottell  v.  Farmers'  etc.  Assn.,  25 
Colo.  67,  71  Am.  St.  Rep.  109,  53  Pac. 
327. 

3  Hunt  v.   Jones,   149   Cal.   297,   86 
Pac.   686.     See  22   Harvard  Law  Re- 
view,   597,    note.      See   Stanislaus   W. 
Co.  v.  Bachman,  152  Cal.  716,  93  Pac. 
858,  15  L.  R.  A.,  N.  S.,  359;  Leavitt 
v.  Lassen  Irr.  Co.  (1909),  157  Cal.  82, 
106   Pac.   404.  '  Quaere,   whether   the 
rule  of  equity  here  invoked  is  not  con- 
fined  to   "negative   easements,"   or  to 
such    affirmative  •  covenants    only    of 
which  equity  would  order  specific  per- 
formance, in  which  contracts  for  con- 
tinual service  are  not  usually  included. 
Contracts  with  distributing  companies, 
see  infra,  sec.  1324  et  seq. 


§539  Ch.  24.     CONTRACTS— CONVEYANCES.  (3d  ed.)  577 

bind  the  land  whether  the  water  is  actually  used  or  not,4  and 
even  in  the  hands  of  a  purchaser  of  the  land,  though  not  techni- 
cally a  covenant  running  with  the  land,5  provided  the  purchaser 
has  notice  of  the  lien.6  The  remedy  of  the  party  furnishing  the 
water  in  such  case  (if  a  public  service  company)  is  by  foreclosure 
of  the  lien,  not  by  personal  action  against  the  assignee  7  nor  by 
cutting  off  the  water.8  But  the  California  courts  have  been  tech- 
nical in  construing  a  contract  attempting  to  create  such  a  lien, 
and  held9  that  a  contract  worded  "to  have  the  force  and  effect 
of  a  covenant  running  with  the  land"  did  not  create  such  a  lien. 
On  rehearing  in  supreme  court,  this  was  affirmed,  though  it  was 
instead  held  the  contract  nevertheless  bound  the  property  as  an 
interest  in  real  estate.10  A  typical  California  water-right  con- 
tract between  a  company  and  a  consumer  was  before  the  Califor- 
nia court  in  the  last  case,  where  it  was  held  that,  though  not 
creating  a  contract  lien  as  above,  it  nevertheless  granted  an 
interest  in  the  company's  canal  and  water-rights,  so  as  to  bind 
the  same  in  the  hands  of  an  assignee  of  the  water  company. 
However,  as  to  contracts  with  companies  in  public  service  this 
was  practically  overruled  in  Leavitt  v.  Lassen  Irr.  Co.,11  although 
apparently  leaving  it  in  force  where  public,  service  is  not  in- 
volved. The  matter  is  further  discussed  in  a  subsequent  chap- 
ter.12 

An  option  on  a  water-right  may  be  assigned.13 

A  provision  appearing  in  many  water  codes  is  as  follows:  "All 
liens  on  the  land  provided  for  in  this  act  shall  be  superior  in 
right  to  all  mortgages  or  other  encumbrances  placed  upon  the 

4  Fresno  etc.  Co.  v.  Eowell,  80  Cal.          6  Ibid.,  Rowell  case. 

116,  13  Am.  St.  Rep.  112,  22  Pac.  53;  7  Fresno  etc.  Co.  v.  Dunbar,  80  Cal. 

Same  v.  Hart,  152  Cal.  450,  92   Pac.  530,  22  Pac.  275. 

1010.  8  Crow    v.    San    Joaquin    Co.,    131 

5  Fresno   Canal  etc.   Co.  v.  Rowell,  Cal.  309,  62  Pac.  562,  1058;   Leavitt 
80  Cal.  114,  13  Am.  St.  Rep.  112,  22  v.   Lassen   Irr.   Co.,   157   Cal.   82,   106 
Pac.  53 ;  Fresno  Canal  etc.  Co.  v.  Dun-  Pac.  404. 

bar,   80   Cal.   530,   22   Pac.   275 ;    Bal-  J>  Stanislaus  Water  Co.  v.  Bachman, 

four  v.  Fresno  Irr.  Co.,  109  Cal.  221,  Cal.  App.,  March  30,  1906. 

41  Pac.  876;  Fresno  Canal  etc.  Co.  v.  10  Same  v.   Same    (1908),   152   Cal. 

Park,  129  Cal.  435,  62  Pac.  87.     But  716,  93  Pac.  858,  15  L.  R.  A.,  N.  S., 

that  is  owing  to  no  peculiarity  of  the  359. 

law   of   appropriation;    it    applies    to  u  157  Cal.  82,  106  Pac.  404. 

other    contracts    also.     See    Cal.    Civ.  12  Infra,  sec.   1315  et  seq. 

Code,   see.   1468.     See,   also,   Hoboken  13  Thompson     Co.     v.     Pennebaker 

Co.  v.  Mayor  etc.,  76  N.  J.  L.  122,  68  (Wash.),  173   Fed.   849,  97   C.  C.  A. 

Atl.  1099.  591. 
Water  Rights — 37 


578  (3d  ed.)    Pt.  III.     THE  LAW  OF  PRIOR  APPROPRIATION.          §  540 

land  and  the  water  appurtenant  thereto  or  used  in  connection 
therewith,  after  the  passage  of  this  act. ' ' 13a 

(3d  ed.) 

§  540.  Contracts  With  Public  Service  Companies  are  Governed 
by  Special  Rules. — Contracts  with  canal  or  irrigation  companies 
(public  service  companies)  for  supply  are  separately  considered 
in  a  later  chapter.  It  has  not  always  hitherto  been  borne  in  mind 
that  public  service  companies  are  under  duties  to  the  public 
which  bring  their  contracts  under  some  different  rules,  for  the 
.protection  of  the  public,  than  those  between  private  parties  alone. 

Where  an  irrigation  company  sells  its  plant  to  a  new  company 
(as,  for  example,  upon  foreclosure  of  mortgage  upon  the  dis- 
tributing system),  it  has  usually  been  held  in  the  West  that  the 
new  company  is  bound  to  the  terms  of  the  old  contracts.14  This 
is  usually  on  the  holding  that  the  consumer  has  an  interest  in  the 
real  estate  of  the  distributing  system ;  but  where  the  distributing 
system  is  one  devoted  to  public  use,  it  seems  now  held  in  Califor- 
nia 15  that  the  consumer's  right  is  one  of  service  as  a  member 
of  the  public,  and  his  contract  does  not  involve  an  interest  in  real 
estate.  It  consequently  seems  now  the  rule  in  California  that 
contracts  will  not  bind  the  new  company  without  an  express  or 
implied  assumption  thereof  by  it;  that  the  consumer's  right 
against  the  new  company  is  a  right  of  service  depending  upon  the 
duties  of  the  company  to  serve  the  public  irrespective  of  con- 
tract, but  that  the  contract  will  apply  against  the  new  company 
as  strong  evidence  of  what  would  be  a  proper  and  reasonable 
service  and  charge  to  all  members  of  the  public.  The  California 
cases  above  referred  to  16  have  been  limited  as  applying  only  to 
contracts  and  transfers  between  private  parties,  and  not  to  con- 
sumers from  public  service  companies,17  though  throughout  the 

I3a  S.   D.   Stats.  1905,  p.   201,  sec.  n  Infra,  sec.  1320. 

55;  S.  D.  Stats.  1907,  c.  180,  sec.  56.  15  Leavitt   v.   Lassen   Irr.   Co.,   157 

Likewise   N.   D.   Stats.    1905,   p.    270,  Cal.  82,  106  Pac.  404,  and  Lassen  Irr. 

sec.  44;  N.  M.  Stats.  1907,  p.  71,  sec.  Co.   v.   Long,    157    Cal.   94,   106    Pac. 

52.     Quaere,    what    bearing,    if    any,  409. 

has      the       constitutional       provision  16  Hunt  v.  Jones,  149  Cal.  297,  86 

against   impairing    the    obligation    of  Pac.    686;    Fresno    Co.    v.    Park,    129 

contracts?  Cal.  437,   62  Pac.  87,   and  Stanislaus 

Regarding    statutory    lien    on    land  W.  Co.  v.  Bachman,  152  Cal.  716,  93 

for  water  charges,  see,  also,  Hoboken  Pac.  858,  15  L.  R.  A.,  N.  S.,  359. 

etc.  Co.   v.  Mayor  etc.,  76  N.  J.  L.  17  Lassen   Irrigation   Cases,    supra. 
122,  68  Atl.  1099. 


§541  Ch.  24.     CONTRACTS— CONVEYANCES.  (3d  ed.)  579 

West,  the  status  of  the   law  of  public   service  is  somewhat  un- 
settled. 

As  a  general  principle,  rights  of  consumers  from  public  service 
companies  (irrigation,  canal,  and  other  companies  supplying  the 
public  use)  rest  upon  certain  duties  of  the  company  to  the  entire 
public,  and  where  a  contract  with  such  a  company  exists,  it  is 
rather  an  incidental  matter,  and  governed  by  different  rules,  in 
many  respects,  than  contracts  or  sales  between  private  parties.18 


B.     CONVEYANCES. 
(3d  ed.) 

§  541.  Water-rights  may  be  Conveyed. — Possessory  rights  on 
the  public  domain  (from  which  the  law  of  appropriation  arose)19 
were  always  recognized  as  transferable.  It  is  consequently  said 
that  a  water-right  "can  be  transferred  like  other  property."20 
Water-rights  may  pass  by  descent ;  21  may  be  sold  on  execution ;  22 
may  be  mortgaged.23 

Some  special  rules,  however,  may  come  in  regarding  parol 
sales,24  and  sales  by  public  service  companies.25 

18  Infra,  sec.   1315.  orado    Springs    (1891),    16    Colo.    70, 

w  Supra,  sec.  82  et  seq.  25  Am-  st-  ReP-  245>  26  Pac.  313. 

20  McDonald  v.  Bear  E.  Co,  13  Cal.  fiJ%Hall1QV-  Blackman,  8  Idaho,  272, 

220,  at  233,   1   Morr.   Min.  Rep.   626.  8  ^a,c;  p19'    .fee  Griseza  v    Terw: ,lh- 

Like    realty     Barkley    v.    Tie&e,    2  ^f'!44  CaMf''?  *a£  ^  Estate 

Mont.   59;    as  real   estate,   Colo.  Rev.  of  J^™"'  147  ^f^K^n 

Stats.  1908,  sec.  669.  pj£  g^**"   v"    Hlll»    65    Cal-    17>    2 

"Possessory  rights  on  the  public  do-  23  Farm  Inv.  Co.  v.  Alta  etc.  Co.,  28 
main  have  always  been  recognized  as  Colo.  408,  65  Pac.  22;  Mitchell  v. 
transferable,  and  water-rights  can  be  Canal  Co.,  75  Cal  464,  17  Pac  246 
transferred  like  other  property."  both  considering  a  question  of  after- 
Thompson  v.  Pennebaker  (Wash.),  acquired  property.  As  to  which  see, 
173  Fed.  851,  97  C.  C.  A.  591,  citing  aiso>  Stanislaus  Water  Co.  v.  Bach- 
this  book,  2x1  ed.,  sec.  221.  man  (1908),  152  Cal.  716,  93  Pac.  858, 

"We  grant  that  the  water  itself  is  15  L.  R.  A.,  N.  S.,  359,  and  Bear  Lake 
the   property   of   the   public;    its  use,  Co.  v.  Garland,  164  U.  S.  1,  17  Sup. 
however,  is  subject  to   appropriation,  Ct.  Rep.  7,  41  L.  Ed.  327. 
and  in  this  case  it   is  conceded   that  Upon   foreclosure   of   mortgage,   all 
the  owner  has  the  paramount  right  to  claimants  under  the  mortgagor  must 
such   use.     In   our   opinion   this   right  be  made  parties,  or  their  easements  or 
may   be   transferred   by   sale   so   long  water-rights  will  not  pass  to  the  fore- 
•as  the  rights  of  others,  as  in  this  case,  closure   purchaser.     Schwab  v.   Smug- 
are   not   injuriously   affected   thereby.  gler  Union  Co.   (Colo.  C.  C.  A.),  174 
If  the  priority  to  the  use  of  water  for  Fed.  305.     See,  also,  infra,  sec.  1320, 
agricultural    purposes    is    a    right    of  mortgages  of  plant  of  public  service 
property,  then  the  right  to   sell  it  is  company, 
as  essential  and  sacred  as  the  right  to  24  Infra,  sec.  555. 
possess    and    use."     Strickler    v.    Col-  25  Infra,  sec.  1324  et  seq. 


580   (3ded.)    Pt.  III.     THE  LAW  OF  PRIOR  APPKOPRIATION.          §542 


(3d  ed.) 

§  542.  Formalities  on  Transfer. — The  conveyance  must  be  in 
writing,  as  of  an  interest  in  real  estate  *  within  the  statute  of 
frauds.2  But  probably  this  applies  only  between  the  parties  to 
a  sale,  and  cannot  be  taken  advantage  of  by  third  persons,3  and 
even  between  the  parties  parol  sales  may  be  effectual  in  some 
cases.4 

The  sale  must  be  recorded,  as  it  is  within  the  recording  acts, 
as  an  interest  in  real  estate,5  and  under  the  recent  water  codes, 
record  must  usually  be  made  also  in  the  office  of  the  State  Engi- 
neer.6 But  recording  is  not  necessary  inter  partesJ1  The  differ- 
ence between  the  statute  of  frauds  and  the  registry  acts  in  this 
is  that  the  former  is  to  prevent  frauds  betiveen  the  parties,  while 
the  latter  are  to  prevent  frauds  on  third  parties  by  giving  them 
constructive  notice.  Consequently,  actual  notice  to  third  parties 
purchasing  subsequent  to  a  prior  unrecorded  conveyance  is  equiva- 
lent to  recording,  and  a  purchaser  with  notice  cannot  set  up 
failure  of  record  as  invalidating  the  prior  grant,  and  possession 
of  ditches  and  water  structures  by  the  former  grantee  is  generally, 
especially  where  coupled  with  open  use,  notice  to  the  world.8  "The 


1  Supra,  sec.  283  et  seq. 

2  California.— Smith  v.  O'Hara,  43 
Cal.    371,    1    Morr.    Min.    Rep.    671; 
O'Neto    v.    Restano,    78    Cal.    374,    20 
Pac.  743;  Dorris  v.  Sullivan,  90  Cal. 
•279,  27  Pac.  216;   Hayes  v.  Fine,  91 
Cal.  391,  27  Pac.  772;  Griseza  v.  Ter- 
williger,  144  Cal.  456,  77  Pac.  1034; 
Oliver    v.    Burnett     (1909),    10    Cal. 
App.  403,  102  Pac.  223. 

Colorado. — Child  v.  Whitman,  7 
Colo.  App.  117,  42  Pac.  601;  Burn- 
ham  v.  Freeman,  11  Colo.  601,  19 
Pac.  761;  Daum  v.  Conley,  27  Colo. 
64,  59  Pac.  753. 

Montana. — Middle  Creek  Co.  v. 
Henry,  15  Mont.  558,  39  Pae.  1054. 

3  -Daum  v.  .Conley,  27  Colo.  56,  59 
Pae.  753,  a  point  upon  which  there  has 
been  much  discussion,  depending  upon 
the  wording  of  the  statute  of  frauds 
as   enacted    in   different   States.     See, 
also,  Watts  v.  Spencer,  51  Or.  262,  94 
Pac.    39;    Featherman    v.    Hennessey 
(Mont.),  113  Pac.  751. 

4  Infra,  sec.  555  et  seq. 

5  Partridge   v.   McKinney,    10    Cal. 
181,  1  Morr.  Min.  Rep.  185;  Lyles  v. 
Perrin,    119    Cal.    264,    51    Pac.    332; 


Leavitt  v.  Lassen  Irr.  Co.,  157  Cal. 
82,  106  Pac.  404.  See  Stanislaus  W. 
Co.  v.  Bachman  (1908),  152  Cal.  716, 
93  Pac.  858,  15  L.  R.  A.,  N.  S.,  359, 
holding  "Miscellaneous"  to  be  a  proper 
book  for  the  instrument  in  that  case. 

6  E.   g.,   Utah  Laws   1905,   c.   108, 
sees.  62;  63,  and  subsequent  Utah  acts. 
In    Wyoming,   it   is   enacted:    "Every 
conveyance  of  a  ditch,  canal  or  reser- 
voir,   or    any    interest    therein,    shall 
hereafter    be    executed    and    acknowl- 
edged in  the  same  manner  as  a  con- 
veyance  of  real  estate   and   recorded 
as  herein  provided,  and  any  suck  con- 
veyance which  shall   not   be  made   in 
conformity  with  the  provisions  of  this 
act  shall  be  null  and  void  as  against 
subsequent  purchasers  thereof  in  good 
faith    and    for    a    valuable   considera- 
tion."    Laws  1907,  c.  86,  p.  138,  sec. 
22. 

7  Whalon  v.  North  Platte  etc.  Co., 
11    Wyo.    313,    71    Pac.    995;    Middle 
Creek  etc.  Co.  v.  Henry,  15  Mont.  558, 
39  Pac.  1054;  Little  v.  Gibb,  57  Wash. 
92,  106  Pac.  491. 

s  Powers  v.  Perry,  12  Cal.  App.  77, 
106    Pac.    595    (dictum,    but    holding 


§543  Ch.  24.     CONTRACTS— CONVEYANCES.  (3ded.)  581 

open  and  notorious  possession  and  user  of  water  from  an  irriga- 
tion canal  through  lateral  ditches  is  constructive  notice  to  a  pur- 
chaser of  the  rights  of  the  party  so  in  possession  and  using  the 
water."9 

The  statute  of  limitations  concerning  realty  applies  to  water- 
rights.10 

In  California,  the  distinction  between  sealed  and  unsealed 
instruments  has  been  abolished.11  As  to  the  necessity  of  a  seal 
where  the  distinction  still  prevails,  see  cases  in  the  note.12 

The  sale  is  complete  on  delivery  of  a  deed  and  possession.13 

(3d  ed.) 

§  543.  Subject  Matter  of  Conveyance. — A  grant  of  a  water- 
right  is  not  a  grant  of  property  in  the  corpus  of  the  water.  A 
sale  does  not  sell  the  water  itself  nor  mean  the  delivery  of  any 
specific  quantity  of  water;  it  merely  passes  the  right  to  use  it 
and  have  it  flow.14 

The  size  of  the  estate  granted  may  sometimes  be  a  difficult 
question,15  especially  in  cases  of  public  service  companies.16 

no  notice  upon  the   facts);   Evans  v.  1   Morr.    Min.   Eep.    626;    Barkley   v. 

Lakeside  D.  Co.,  13  Cal.  App.  119,  108  Tieleke,    2    Mont.    59,    4    Morr.    Min. 

Pac.  1027.  Rep.   666;    Mattis   v.   Hosmer,  37   Or., 

9  Park  v.  Park  (1909),  45  Colo.  347,  523,  62  Pac.   17,  632. 

101  Pac.  406;  McLure  v.  Koen,  25  13  Booth  v.  Chapman,  59  Cal.  149. 
Colo.  284,  53  Pac.  1058;  Conger  v.  14  Supra,  sec.  537. 
Weaver,  6  Cal.  548,  1  Morr.  Min.  Rep.  15  A  written  permission  to  build  a 
594.  Reasonable  diligence  would,  it  is  ditch,  held  to  grant  a  perpetual  ease- 
held,  require  a  prospective  purchaser  ment.  Shaw  v.  Proffitt  (Or.  1910), 
of  a  portion  of  land  to  investigate  the  109  Pac.  584.  An  agreement  to  al- 
title  to  priorities,  where  three  persons  low  defendants  to  flow  slimes  and 
after  a  decree  openly  continued  to  use  tailings  from  a  mine  through  plain- 
all  the  water  for  irrigating  their  tiff's  predecessor's  flumes,  pipes, 
farms  as  before  the  decree,  and  it  was  sluices  and  reservoirs  and  onto  plain- 
constructive  notice  of  their  rights  tiff's  predecessor's  land,  held  to  grant 
though  the  decree  itself  did  not  settle  an  easement  which,  being  an  interest 
such  rights.  Park  v.  Park,  45  Colo.  in  realty,  was  not  lost  by  foreclosure 
347,  101  Pac.  403.  of  a  mortgage  on  plaintiff's  property, 
As  to  the  effect  of  possession  as  to  which  foreclosure  defendant  was 
notice,  see  also,  the  following  sections,  not  a  party.  Schwab  v.  Smuggler 
regarding  apparent  easements  between  Union  Co.  (Colo.),  174  Fed.  305,  98 
the  parties.  The  present  section  refers  C.  C.  A.  160.  Deed  of  reservoir 
to  third  persons.  site  construed  and  held  to  pass  a 

10  Infra,   sec.   579   et   seq.,   adverse  fee  in  the  soil  and  not  merely  an  ease- 
possession,  ment  of  flooding.     Van  Slyke  v.  Ar- 
il Civ.  Code,  sec.  1629.  rowhead    etc.    Co.    (1909),    155    Cal. 
12  Ortman    v.    Dixon,    13    Cal.    33;  675,  102  Pac.  816. 

McDonald  v.  Bear  R.  Co.,  13  Cal.  220,          1C  Infra,  sec.  1324  et  seq. 


582   (3ded.)    Pt.  IIL    THE  LAW  OF  PRIOR  APPROPRIATION.     §§544,545 
(3d  ed.) 

§  544.  Construction  and  Operation  of  Conveyance. — Contracts 
and  conveyances  must  be  certain.  "Sufficient  to  irrigate  said 
land"  in  a  deed  is  probably  too  uncertain.17 

By  a  written  conveyance,  priority  is  preserved.18 

A  sale  cannot  bind  other  appropriators  not  parties  to  it,  nor 
abridge  their  rights,  nor  be  valid  as  against  them  to  their  injury.19 
Thus,  a  grant  of  an  appropriation  by  a  mill  owner  cannot,  as 
against  lower  (though  subsequent)  appropriates,  confer  any 
right  to  make  a  different  use  of  the  water  than  the  mill  did,  to 
their  prejudice,  such  as  to  take  the  water  permanently  away  for 
irrigation.20  It  has  been  held  that  the  grantee  cannot  sue  for 
damages  for  a  diversion  antedating  the  sale.21  Mortgages  are  some- 
times postponed  to  water  charges.22 

Where  one  agrees  to  furnish  water  to  another,  the  conveyance 
into  a  single  person  of  all  of  both  parties'  rights  and  duties 
under  such  a  contract  could  result  in  nothing  but  a  merger  of  these 
rights  and  duties  and  an  extinguishment  of  the  contract,  since 
no  man  can  contract  with  himself  and  no  man  can  be  compelled 
to  furnish  water  to  himself  and  pay  himself  therefor.23 

(3d  ed.) 

§  545.     Reservations. — Unless  otherwise  provided  by  statute, 

the  right  may  be  sold  separate  from  land,  since  it  is  independent 
of  title  to  or  possession  of  land,  as  is  more  fully  considered 
elsewhere.24  Likewise,  the  water-right  and  ditch  right  may  be 
sold  separately,  and  the  conveyance  of  one  does  not  necessarily 
include  the  other.25 

As  below  considered,  though  a  water-right  is  usually  appur- 
tenant to  the  land  where  used,  yet  it  may  be  reserved  on  a  sale 

17  See  Leavitt  v.  Lassen   Irr.   Co.,          21  Kimball  v.  Gearhart,  12  Cal.  27, 
157  Cal.  82,  106  Pac.  404.     See  as  to  1    Morr.    Min.    Rep.    615;    Rianda   v. 
certainty  generally,  Stanislaus  W.  Co.  Watsonville  etc.  Co.   (1907),  152  Cal. 
v.    Bachman,    152    Cal.    716,    93    Pac.  523,  93  Pac.  79. 

858,  15  L.  R.  A.,  N.  S.,  359;  Booth  v.  22  Supra,  sec.  539. 

Trager   (1908),  44  Colo.  409,  99  Pac.  23  Mr.  Justice  Henshaw,  in  Leavitt 

60;     Thompson    v.    Pennebaker,     173  v.  Lassen   Irr.   Co.,   157   Cal.   82,   106 

Fed.  849,  97  C.   C.  A.  591.     A  ditch  Pac.   404. 

is  sufficiently  described  in  a  deed  as  24  Supra,    sees.    281,    508    et    seq. 

"Watson    Ditch."     Murray   v.    Tulare  Under   water   codes,   approval   of   the 

Irr.  Co.,  120  Cal.  315.  State  Engineer  is  necessary. 

18  Infra,  sec.  555  et  seq.,  parol  sale.  25  Wold  v.  May,  10  Wash.   157,  38 

19  See  supra,  499 ;    infra,  sec.   626  Pac.   875 ;    Ada   etc.   Co.    v.   Farmers' 
et  seq.  etc.   Co.,   5   Idaho,   793,   51   Pac.  990, 

20  Windsor  Co.  v.  Lake  Supply  Co.,  40  L.  R.  A.  485;  Rogers  v.  Riverside 
44  Colo.  214,  98  Pac.  729.  etc.  Co.,  132  Cal.  9,  64  Pac.  95. 


§546  Ch.  24.     CONTRACTS— CONVEYANCES.  (3ded.)  583 

of  the  land.  A  "reservation"  is  something  extracted  from  the 
whole  res  covered  by  the  general  terms  of  the  grant,  lessening 
the  thing  granted  from  what  it  would  otherwise  have  been.1  A 
grantee's  acceptance  of  a  deed  containing  a  reservation  to  the 
grantor  of  a  priority  or  appropriation  of  water  for  a  certain 
reservoir,  when  no  priority  or  appropriation  had  b'een  secured, 
did  not  estop'  the  grantee  to  claim  an  appropriation  of  its  own 
for  such  reservoir.2 

Implied  reservations  may  exist  from  circumstances.  A  con- 
veyance of  land  is  subject  to  apparent  water-right  or  ditch  .ease- 
ments,3 or  those  of  which  the  grantee  has  notice,4  but  not  to 
nonapparent  ones  of  which  the  grantee  has  no  notice.5  Even  in 
Colorado  one  cannot  enter  upon  another's  land  to  build  an  irri- 
gation ditch  which  was  not  there  when  he  acquired  the  land, 
contrary  to  the  rule  at  first  asserted  in  Colorado  that  all  land 
was  held  subject  to  entry  by  irrigators  to  build  ditches  across 
it.9 

(3d  ed.) 

§  546.  Sales  of  Uncompleted  Works — After-acquired  Prop- 
erty.— A  sale  before  completion  of  the  appropriation  gives  the 
grantee  a  right  to  complete  it  where  diligence  has  been  used  in 
the  construction  work,  preserving  priority ; 7  but  where  a  right 
has  been  lost  by  lack  of  diligence  in  construction  work,8  or  by 
nonuser  and  abandonment,9  there  is  nothing  to  sell  and  a  con- 
veyance passes  nothing.  A  sale  between  notice  and  completion, 
while  acting  diligently,  is  valid,  and  the  purchaser's  completion 
relates  back  to  the  original  notice.10  Rights  of  purchasers  from 

1  Hough  v.  Porter,  15   Or.  318,  95  Canyon  W.  Co.  v.  Everett  (1908),  154 
Pac.  732,  98  Pac.  1083,  102  Pac.  728.  Cal.  29,  96  Pac.  811. 

2  Windsor   R.   Co.   v.   Lake   Supply  4  Fresno    Canal    Co.    v.    Rowell,   80 
Co.,  44  Colo.  214,  98  Pac.  729.  Cal.  114,  13  Am.  St  Rep.  112,  22  Pac. 

Reservations    in    deeds    construed:       53 
See    Kelly    v.    Hynes    (Mont.    1910),  5  B]  ,  B  ._    _ 

ins    T>*fl     7R^-    Ppfprsrm    v     TVIVDnnald  r>ldKe    V.     ISOye,    38     1^010.     OO,     88 

IUB  .rac.   IKO,   .reie       a  v.  IYICJ        uu,  p         ,,-„    8  T,    R    A     MS     d.18 

13  Cal.  App.  644,  110  Pac.  465;  Bal-  rac"  4'U'  *  ^  K'  A''  "'  b->  418' 

lard  v.  Titus,  157  Cal.  673,  110  Pac.  8  Supra,  sec.  221  et  seq. 

118;    German    etc.    Soc.    v.    McLellan  T  Nevada  etc.  Co.  v.  Bennett,  30  Or. 

(1908),  154  Cal.  710,  99  Pac.  194.  59,  60  Am.  St.  Rep.  777,  45  Pac.  472. 

3  Baldock  v.  Atwood,  21  Or.  73,  26  8  Colorado   etc.   Co.  v.   Rocky  Ford 
Pac.  1058;  Shaw  v.  Proffitt  (Or.),  110  etc.  Co.,  3  Colo.  App.  545,  34  Pac.  580. 
Pac.   1092.     Purchaser  of  land   takes  »  Davis  v.  Gale,  32  Cal.  26,  9  Am. 
subject    to    visible    dam     and     ditch  Dec.    554,    4    Morr.    Min.    Rep.    604; 
easement.     Arterburn  v.  Beard  (1910),  Kirman  v.  Hunnewill,  93  Cal.  519,  29 
86  Neb.  733,  126  N.  W.  379.    Whether  Pac.    124. 

a  pipe-line  buried  in  the  ground  is  an  10  Beckwith  v.  Sheldon  (1908),  154 

apparent  easement,  left  open  in  Rubio      Cal.  393,  97  Pac.  867. 


584  (3ded.)    Pt.  III.     THE  LAW  OF  PRIOR  APPROPRIATION.          §547 

a  mere  squatter,  claiming  under  the  doctrine  of  prior  appropria- 
tion, relate  back  to  the  original  diversion.11  Mortgages  or 
mechanics'  liens  may  attach  to  property  added  to  water  struc- 
tures in  course  of  completion  or  afterward  acquired.12 

Sales  may  be  made  of  permits  from  the  State  Engineer  to 
make  appropriations,  and  the  purchaser  of  the  permit  will  stand, 
in  the  shoes  of  his  vendor.13  This  is  usually  expressly  allowed 
by  statute,  with  the  additional  requirement  of  recording  the 
transfer  with  the  State  Engineer.14  In  Idaho  the  record  in  the 
State  Engineer's  office  does  not  necessarily  contain  a  record  of 
assignments  of  the  permit  or  transfers  made  thereof,  as  no  pro- 
vision is  made  for  recording  such  assignments  or  transfers  in 
the  State  Engineer's  office.15 

The  grantor  of  a  water-right  which  he  does  not  own  at  the 
time  is  estopped  by  his  deed  from  claiming  it  if  afterward 
acquired  by  him.16  But  reservation  to  a  grantee  of  a  priority 
of  appropriation  of  water  for  a  reservoir,  which  had  not  been 
in  fact  acquired  by  the  grantor,  did  not  estop  the  grantee  from 
claiming  priority  for  a  subsequent  appropriation  for  such  reser- 
voir.17 The  owner  of  a  water-right  who  accepts  a  "lease"  thereof 
from  another  claimant,  while  he  is  himself  in  possession,  and 
who  has  not  at  any  time  received  the  possession  from  the  lessor, 
is  not  estopped  by  the  lease  from  asserting  his  title  against  said 
lessor.18 

(3d  ed.) 

§  547.     Sale  in  Parts. — An  appropriation  may  be  sold  in  parts 

and  a  sale  of  a  part  is  not  per  se  void  as  an  abandonment  of  that 
part.19  A  sale  of  a  part  which,  previous  to  the  sale,  has  in  fact 

11  Hough  v.  Porter,  51  Or.  318,  95  214,  98  Pac.  729.     See  Bessemer  etc. 
Pac.  732,  98  Pac.  1083,  102  Pac.  728.  Co.  v.  Woolley,  32  Colo.  439,  105  Am. 

12  Supra,  sec.  541.,  St.  Rep.  91,  76  Pac.   1053,  holding  a 

13  Whalon  v.  North  Platte  etc.  Co.,  certain     clause     not     to     pass     after- 
11  Wyo.  313,  71  Pac.  995.  acquired  water-right. 

14  E.  g.,  N.  M.  Stats.   1907,  p.  71,  18  Strong   v.   Baldwin    (1908),    154 
sec.  36;  S.  D.  Stats.  1907,  c.  180,  sec.  Cal.   150,   129   Am.   St.   Rep.   149,   97 
32;  N.  D.  Stats.  1905,  c.  34,  sec.  31.  Pac.    178;    citing    Oneta    v.    Restano, 

is  Speer  v.   Stephenson    (1909),  16  89    Cal.    63,    26    Pac.    788.     Compare 

Idaho,  707,  102  Pac.  365.  Swift   v.    Goodrich,    70    Cal.    103,    11 

16  Dictum,    Rianda    v.    Watsonville  Pac.  561. 

W.  Co.   (1907),  152  Cal.  523,  95  Pac.  19  Senior  v.  Anderson,  138  Cal.  716, 

79.     See   Shaw   v.   Proffit    (Or.),   110  72  Pac.  349;   McDanold  v.  Askew,  29 

Pac.  1092.  Cal.    200,    1    Morr.    Min.    Rep.    660; 

IT  Windsor   Reservoir   &   Canal   Co.  Drake   v.   Earhart,    2   Idaho,   716,   23 

V.   Lake   Supply   Ditch   Co.,   44   Colo.  Pac.      541;      Strickler      v.      Colorado 


§548  Ch.  24.     CONTRACTS— CONVEYANCES.  (3ded.)  585 

been  abandoned  for  nonuse,  will  pass  nothing,  however.20  Con- 
sequently a  sale  of  the  surplus  one  does  not  need  will  pass 
nothing,  where  the  facts  show  that  such  lack  of  need  preceded 
the  sale  in  such  a  way  as  to  have  caused  abandonment  or  for- 
feiture before  the  sale,  so  as  to  show  that  the  seller  at  the  time 
of  sale  had  no  right  to  such  surplus.21 

A  sale  of  a  part  which  would  injure  subsequent  appropriators 
by  the  new  use  made  of  it  is  invalid  against  them.22  But  a 
sale  of  part  is  valid  between  the  parties  to  the  sale  in  any  event,23 
the  parties  becoming  tenants  in  common.24 

(3d  ed.) 

§  548.    Lease  or  Exchange  or  Other  Temporary  Disposal. — 

"Leases"  or  "loans"  or  similar  transactions  in  water-rights 
cannot  create  the  relation  of  landlord  and  tenant,  since  water- 
rights  are  incorporeal  hereditaments  in  which  tenancy  cannot 
exist.  A  water-right  may  be  sold  outright  for  use  on  different 
land,  but  cannot  be  leased  for  temporary  use.25  A  "lease"  of  a 
water-right  does  not  bring  in  the  law  of  estoppel  that  applies 
between  landlord  and  tenant.1  The  owners  of  a  mining  ditch, 
who  took  water  therefrom  for  irrigation,  by  leasing  their  interest 
therein,  were  held  to  have  abandoned  their  irrigation  rights  in 
the  ditch.2 

Colorado  permits  contracts  for  the  "loan"  of  water,  an  anomalous 
procedure,  authorized  by  statute,3  but  not  favored  by  the  court. 

Springs,  16  Colo.  61,  25  Am.  St.  Rep.  23  Calkins  v.  Sorosis  Fruit  Co.,  150 

245,  26  Pac.  313;  Larrimer  etc.  Co.  v.  Cal.  426,  88  Pac.  1094. 

Cache  La  Poudre  etc.  Co.,  8  Colo.  App.  24  Rose   v.    Mesmer,    142    Cal.    322, 

237,  45  Pac.  525;   Ft.  Morgan  Co.  v.  75  Pac.  905. 

So.  Platte  D.  Co.,  18  Colo.  1,  36  Am.  25  Slosser  v.  Salt  R.  Co.   (1901),  7 

St.   Rep.   259,   30   Pac.   1032;    Middle  Ariz.  376,  65  Pac.  332. 

Cr.   Co.   v.   Henry,   15   Mont.   558,   39  i  Swift   v.    Goodrich,    70   Cal.    103, 

Pac.    1054;    Frank   v.   Hicks,   4  Wyo.  11     Pac.     561;     Strong    v.     Baldwin 

502,   35  Pac.  475,   1025;    Milheiser  v.  (1908),    154    Cal.    150,    129    Am.    St. 

Long,  10  N.  M.  99,  61  Pac.  Ill;  Hall  Rep.  149,  97  Pac.  178.     Cf.  Oneta  v. 

v.   Blackman,   8   Idaho,   272,    68   Pac.  Restano,  89  Cal.  63,  26  Pac.  788. 

19;    Calkins   v.    Sorosis   etc.   Co.,    150  2  Davis  v.  Chamberlain,  51  Or.  304, 

Cal.  426,  88  Pac.  1094.  98  Pac.  154. 

20  Davis  v.  Gale,  32  Cal.  26,  91  Am.  A   covenant   in   a   lease   to   furnish 
Dec.    554,    4    Morr.    Min.    Rep.    604;  water  for  irrigation  held  not  complied 
Kirman  v.  Hunnewill,  93  Cal.  519,  29  with   by    furnishing   a   well   with   the 
Pac.  124;   Manning  v.  Fife,  17  Utah,  cap  locked,  so  that  water  could  not  be 
232,  54  Pac.  111.  obtained    without    breaking    the    lock. 

21  Dictum,  Johnston  v.  Little  Horse  Smith    v.    Hicks,    14   N.    M.    560,    98 
etc.   Co.,   13   Wyo.   208,    110   Am.   St.  Pac.  138. 

Rep.  986,  79  Pac.  22,  70  L.  R.  A.  341.          3  3  Mills'  Ann.  Stats.,  2d  ed.,  sees. 

22  Creek    v.    Bozeman    etc.    Co.,    15      2271a-2271e;    Mills'   Ann.    Stats.   Rev. 
Mont.  121,  38  Pac.  459.  Supp.,   sec.   2273c;    Rev.    Stats.    1908, 


586  (3ded.)    Pt.  III.    THE  LAW  OF  PRIOR  APPROPRIATION.     §§549,550 

The  statute  provides  that  the  owners  of  irrigation  ditches  and  water- 
rights  taking  from  the  same  stream  may  exchange  with  and  loan 
to  each  other,  for  a  limited  time,  water  to  which  each  may  be 
entitled,  for  the  purpose  of  saving  crops  or  of  using  the  water  in 
a  more  economical  manner.  This  is  held  only  to  permit  an 
exchange  or  loan  of  water  under  circumstances  not  injuriously 
affecting  the  vested  rights  of  other  appropriators,  and  the  bene- 
ficiary of  the  loan  must  affirmatively  plead  and  prove  that  the 
water  so  loaned  could  be  and  was  used  without  injury  to  other 
appropriators,  including  those  subsequent  in  priority  to  the  lenders. 
So  construed,  the  statute  has  been  held  constitutional.4  Nor  can 
exchanges  of  water  be  made  under  the  Colorado  law  such  as  to 
convert  a  junior  into  a  senior  right.5  Question  of  exchanges  of 
water  between  the  same  or  different  owners  of  reservoirs  cannot 
be  determined  in  a  statutory  action  to  establish  priorities  of  rights 
to  store  water  in  reservoirs  of  the  district.6 

(3d  ed.) 

§  549.    Sales  of  "Water-rights"  by  Public  Service  Companies. 

Concerning  sales  of  "water-rights,"  so  called,  by  a  distributing 
company,  reference  is  made  to  a  later  chapter.  Though  the 
decisions  have  not  always  appreciated  the  distinction,  yet,  prop- 
erly speaking,  contracts  for  or  sales  of  water  supply  by  public 
service  companies  are,  for  the  protection  of  the  public,  governed 
by  different  considerations  than  those  between  private  parties.7 


C.     APPURTENANCE. 
(3d  ed.) 

§  550.    Whether  the  Water-right  is  an  Appurtenance  to  Land. 

The    water-right    by    appropriation    is    an    individual    thing    or 
species  of  property,  independent  of  ownership   or  possession  of 

sec.  3232;  Laws  1899,  p.  236,  sec.  3;.  make  many   of  the   reservoirs   of   ap- 

Ft.  Lyon   v.   Chew,   33   Colo.   392,   81  pellants,   which ,  were   built   and   used 

Pac.  37 ;   Bowman  v.  Virdin,  40  Colo.  for    storage    a    decade    before    Fossil 

247,  90  Pac.  506.     But  see  Slosser  v.  Creek  reservoir  was  conceived,  subor- 

Salt  River  Co.,   7  Ariz.   376,   65  Pae.  dinate    to    the    latter.     No  device  or 

332.     See  Kan.  Gen.  Laws,  1909,  sec.  combination  of  appliances  that  would 

4436.  produce     such     a     flagrant     injustice 

4  Bowman  v.  Virdin,  40  Colo.  247,  should  be  looked  upon  with  favor  or 
90  Pac.  506.  sanctioned    by    a    court    of    equity." 

5  "If  such  system  of  exchange,  taken  Windsor     Co.     v.     Lake     Supply     Co. 
in  connection  with  other  parts  of  the  (1909),  44  Colo.  214,  98  Pac.  729. 
decree  in  favor  of  the  owner  of  the  6  Windsor  Reservoir  &  Canal  Co.  v. 
Fossil     Creek     reservoir,   is   put    into  Lake  Suply  Ditch  Co.   (Colo.),  supra. 
practice,  it  will  necessarily  convert  a  7  Infra,  sec.  1245  et  seq. 

junior    into    a    senior    right.     It    will 


§551  Ch.  24.     CONTRACTS— CONVEYANCES.  (3ded.)  587 

any  land,8  and  not  an  easement  or  servitude  upon  any  other  prop- 
erty, but  a  usufructuary  right  in  a  natural  stream  as  a  natural 
resource.  As  elsewhere  considered  at  length,  it  may  be  sold 
separately  from  the  land  (except  where  the  very  recent  legisla- 
tion expressly  enacts  the  contrary).9  It  is  consequently  entirely 
a  matter  of  the  will  of  the  owner  whether,  on  a  sale  of  the  land, 
the  water-right  shall  or  shall  not  pass  at  the  same  time. 

It  is  well  settled  that  a  water-right  may  pass  with  land  as  an 
appurtenance  thereto,  or  as  a  parcel  thereof,10  but  not  necessarily 
so;  and  whether  a  water-right  passes  as  an  appurtenance  involves 
two  questions,  viz. :  (a)  Whether  the  water-right  is  an  appurte- 
nance, and  (&)  whether,  being  such,  it  was  intended  to  pass.  Both 
of  these  are  questions  of  fact  in  each  case. 

(3d  cd.) 

§  551.     Same. — The    first    question,    whether   the    water-right 

is  an  appurtenance,  depends  on  whether  it  is  an  incident,  neces- 
sary to  the  enjoyment  of  the  land.  The  water-right  is  not  neces- 
sarily appurtenant  to  or  parcel  of  any  land;  and  whether  it  is  an 
appurtenance  or  parcel  is  a  question  of  fact  resting  chiefly  upon 
whether  it  was  used  specially  for  the  benefit  of  the  land  in  ques- 
tion.11 When  used  for  irrigation,  there  will  seldom  be  doubt  of 

8  Supra,  sec.  281.  777,  45   Pac.   472;    Hough  v.   Porter, 

»  Supra,  sec.  508  et  seq.  51  Or.  318,  95  Pac.  732,  98  Pac.  1083, 

10  Quirk   v.    Talk,    47    Cal.    453,    2  102  Pac.  728;  Whited  v.  Gavin  (Or.), 

Morr.  Min.  Rep.  19;  Reynolds  v.  Hos-  105    Pac.    396;     Porter  v.   Pettengill 

mer,  51  Cal.  305,  5  Morr.  Min.  Rep.  (Or.),   110   Pac.   393;   Arnett  v.  Lin- 

>6;    Hungarian   etc.   Co.   v.   Moses,   58  hart,  21  Colo.  188,  40  Pac.  355;  Gel- 

Cal.  168;  Lower  Kings  River  etc.  Co.  wicks  v.  Todd,  24  Colo.  494,  52  Pac. 

v.  Kings  etc.,  60  Cal.  408;   Fitzell  v.  788;  North  American  Exploration  Co. 

Leaky,    72    Cal.    477,    14    Pac.     198;  v.  Adams,  104  Fed.  404,  45  C.  C.  A. 

Standart    etc.    Co.    v.    Round    Valley  185,  21  Morr.  Min.  Rep.  65.     See,  also, 

etc.   Co.,   77   Cal.    399,    19    Pac.    689;  65  L.  R.  A.  407,  note,  and  17  Ency. 

Mitchell  v.  Amador  Canal  etc.  Co.,  75  of  Law,  515. 

Cal.   464,    17    Pac.    246;    Coonradt    v.  Utah  Laws   1905,  c.   108,  sec.   617; 

Hill,  79  Cal.  587,  21  Pac.  1099;   Me-  Idaho   Rev.    Codes,   sec.    3240;    Stats. 

Shane  v.  Carter,  80  Cal.  310,  22  Pac.  1901,    sec.    9b;    Stats.    1903,    p.    223, 

178;   Crooker  v.  Benton,  93  Cal.  365,  sec.  9,  as  amended  1905,  p.  174,  sec. 

28    Pac.    953;    Clyne   v.    Benicia    etc.  38;    Okl.    Stats.    1905,    p.    274,    sees. 

Co.,  100  Cal.  310,  34  Pac.  7*14;  Dixon  21,  30;  S.  D.  Stats.  1905,  p.  201,  sees. 

v.   Schermeier,   110   Cal.   582,  42   Pac.  31,   47;    Stats.    1907,   c.    180,   sec.    2; 

1091;   Smith  v.  Corbit,   116  Cal.  587,  and   water  codes  generally.     Cf.   Cal. 

48  Pac.  725 ;  Williams  v.  Harter,  121 .  Civ.   Code,  sec.  662. 

Cal.    47,    53    Pac.    405 ;     Pendola    v.  See,    also,   cases   below  cited.     See, 

Ramm,    138    Cal.    517,    71    Pac.    624;  also,  as  to  rights  of  consumers  from 

Senior  v.  Anderson,  138  Cal.   716,   72  distributing  agencies,  infra,  sees.  1324 

Pac.  349;   Pogue  v.   Collins,   146,   Cal.  et  seq.,  1338. 

435,    80    Pac.    623;    Nevada    etc.    Co.  n  Quirk   v.    Falk,    47    Cal.    453,    2 

v.  Bennett,  30  Or.  59,  60  Am.  St.  Rep.  Morr.  Min.  Rep.  19;  Mitchell  v.  Am- 


588   (3de<l.)    Pt.  III.     THE  LAW  OF  PRIOR  APPROPRIATION.          §552 


such  necessity.12  A  water-right  or  ditch  right  is  appurtenant 
only  to  such  lands  of  a  large  tract  as  had  been  actually  irrigated 
from  it.13  A  water-right  is  incidental  or  appurtenant  to  land 
when  by  right  used  with  the  land  for  its  benefit.14 

Whether  rights  of  consumers  from  public  service  companies  can 
constitute  "appurtenances"  like  original  appropriations  is  else- 
where considered.  They  are  so  treated  in  Colorado,15  and  recently 
similar  rulings  were  made  in  California ; 16  but  this  has  been 
practically  overruled  in  Leavitt  v.  Lassen  Irr.  Co.17  It  would  seem 
in  California  that  a  purchaser  of  land  upon  which  water  from  a 
public  service  distribution  is  used  for  irrigation  takes  his  right 
as  a  member  of  the  public  entitled  to  equal  service  with  the  rest 
of  the  public,  rather  than  as  successor  to  any  individual  "water- 
right."18 

(3d  ed.) 

§  552.    Whether  Passes  on  Sale  of  Land  When  Appurtenant 

Thereto. — The  second  question  whether,   being  appurtenant,   it 


ador  Canal  etc.  Co.,  75  Cal.  464,  17 
Pac.  246;  Payne  v.  Cummings,  146 
Cal.  426,  106  Am.  St.  Rep.  47,  80  Pae. 
620. 

12  Water-right   (or  ditch)    held  ap- 
purtenant on  the  facts.    Mattis  v.  Hos- 
mer,  37  Or.  523,  62  Pac.  17,  632;  Mur- 
ray v.  Briggs,  29  Wash.  245,  69  Pac. 
765;  Rickey  etc.  Co.  v.  Miller  (Nev.), 
152   Fed.   14,  81  C.  C.  A.   207;   Pen- 
dola  v.  Ramm,  138  Cal.  517,  71  Pac. 
624;    Hunstock    v.    Limburger    (Tex. 
Civ.  App.),   115  S.  W.  327;   Whittle- 
sey  v.  Porter,  82  Conn.  95,  72  Atl.  593. 

Water-right  (or  ditch)  held  not  ap- 
purtenant on  facts.  Ginocchio  v.  Am- 
ador  etc.  Co.,  67  Cal.  493,  8  Pac.  29; 
Strickler  v.  Colorado  Springs,  16  Colo. 
61,  25  Am.  St.  Rep.  245,  26  Pac.  313 ; 
Bloom  v.  West,  3  Colo.  App.  212,  32 
Pac.  846;  Crawford  v.  Minnesota  etc. 
Co.,  15  Mont.  153,  38  Pac.  713 ;  Dodge 
v.  Marden,  7  Or.  457,  1  Morr.  Min. 
Rep.  63;  Oliver  v.  Burnett  (1909), 
10  Cal.  App.  403,  102  Pac.  223.  The 
cases  to  this  effect  are  more  fully 
cited  elsewhere  herein,  in  considering 
sale  separate  from  land  on  change  of 
place  of  use,  supra,  sec.  508  et  seq. 

13  Anaheim     W.     Co.     v.     Ashcroft 
(1908),  153  Cal.  152,  94  Pac.  613. 


14  Cal.  Civ.  Code,  sec.  662.     Appur- 
tenance   defined,    Hunstoek    v.    Lim- 
burger (Tex.  Civ.  App.  1909),  115  S. 
W.  327. 

In  most  of  the  cases  the  water  ap- 
propriation is  called  an  appurtenance. 
In  some  (McShane  v.  Carter,  80  Cal. 
310,  22  Pac.  178;  Smith  v.  Corbit, 
116  Cal.  587,  48  Pac.  725;  Williams 
y.  Barter,  121  Cal.  47,  53  Pac.  405) 
it  is  spoken  of  as  an  incident  to  or 
parcel  of  the  land.  In  one  (Payne 
v.  Cummings,  146  Cal.  426,  106  Am. 
St.  Rep.  47,  80  Pac.  620),  the  words 
"appurtenance"  and  "parcel"  are  used 
indiscriminately. 

And  see  Bank  of  British  N.  A.  v. 
Miller  (Or.),  6  Fed.  545,  7  Saw.  1G3; 
Frank  v.  Hicks,  4  Wyo.  502;  35  Pac. 
475,  481,  1025;  Idaho  Rev.  Codes,  sec. 
3292.  See  Kinney  on  Irrigation,  Bee. 
267. 

15  Infna,  sec.  1338. 

16  Stanislaus   W.    Co.    v.   Bachman, 
152  Cal.  716,  93  Pac.  858,  15  L.  R.  A., 
N.   S.,   359;   City  of  South   Pasadena 
v.  Pasadena  L.  &  W.  Co.   (1908),  152 
Cal.  579,  93  Pac.  490. 

17  157  Cal.  82,  106  Pac.  404;  Las- 
sen Irr.  Co.  v.  Long,  157  Cal.  94,  106 
Pac.  409. 

is  See  infra,  sec.  1324. 


§553 


Ch.  24.     CONTRACTS— CONVEYANCES. 


(3ded.)  589 


passes  on  a  sale  when  the  deed  does  not  use  the  word  "appurte- 
nances," is  a  question  of  the  intention  of  the  parties.  A  water- 
right  by  appropriation  appurtenant  to  land  may  well  be  separated 
therefrom,  and  the  land  may  be  sold  either  with  or  without  the 
appurtenant  water-right.19  The  word  "appurtenance"  does  not 
mean  "inseparable"  in  this  connection,20  as  we  have  set  forth  at 
length  in  another  place  in  discussing  change  of  place  of  use.21 
It  depends  on  what  the  facts  show  that  the  parties  to  the  sale 
meant  to  do.  It  is  a  question  of  intention,  to  be  drawn  from  the 
deed;  or,  if  the  deed  is  silent,  to  be  drawn  from  the  surrounding 
circumstances,  the  acts  of  the  parties  and  parol  evidence  gener- 
ally.22 

The  party  asserting  that  it  was  so  intended  to  pass  has  the 
burden  of  proof,23  but  a  showing  that  the  water-right  was  appur- 
tenant and  necessary  to  the  beneficial  enjoyment  of  the  land  has 


19  Cooper  v.  Shannon,  36  Colo.  98, 
118  Am.  St.  Rep.  95,  85  Pac.  177; 
Fudickar  v.  East  Riverside  Co.,  109 
Cal.  37,  41  Pac.  1024. 

fcO  Calkins  v.  Sorosis  etc.  Co.,  159 
Cal.  426,  88  Pac.  1094;  Or.  Stats. 
1909,  c.  216,  sec.  65. 

At  common  law  there  is  a  rule 
generally  stated  as  being  that  a  right 
pppurtenant  cannot  be  turned  into  a 
right  in  gross.  This,  as  applied  to 
water-rights  at  common  law,  means 
that,  aside  from  riparian  rights,  such 
appurtenant  water-right  rests  upon 
contract,  and  cannot  be  varied  against 
the  owner  from  whom  obtained.  But 
a  water-right  by  appropriation  in  the 
West  does  not  rest  upon  contract  be- 
tween private  parties,  and  requires 
no  permission  for  its  change;  it  is  not 
a  derivative  but  an  original  right,  and 
hence  not  within  the  common-law  rule 
against  assignment  in  gross.  Fudic- 
kar v.  East  Riverside  Co.,  109  Cal. 
37,  41  Pac.  1024.  See,  also,  Ruhnke 
v.  Aubert  (Or.),  113  Pac.  38. 

21  Supra,  sec.  508. 

22  That  passing  as  appurtenance  is 
a    question    of    intention:    Geddis  v. 
Parrish,   1  Wash.   587,   21   Pac.   314; 
Simmons  v.  Winters,  21  Or.  35,  28  Am. 
St.     Rep.     727,    27    Pac.   7;    Child   v. 
Whitman,  7  Colo.  App.   117,  42  Pac. 
601;   Farmer  v.  Ukiah  Water  Co.,  56 
Cal.  11;   Cross  v.  Kitts,  69  Cal.  217, 
58  Am.  Rep.  558,  10  Pac.  409;  Bank 
of  British  N.  A.  v.  Miller  (C.  C.),  G 


Fed.  545,  7  Saw.  163  (saying  if  in 
gross,  passes  as  parcel,  not  as  appurte- 
nance) ;  Farm  Inv.  Co.  v.  Gallup,  13 
Wyo.  20,  76  Pac.  917  (saying  it  is  a 
question  of  fact) ;  Clyne  v.  Benicia 
Water  Co.,  100  Cal.  310,  34  Pae.  714; 
Tucker  v.  Jones,  8  Mont.  225,  19  Pac. 
571;  Sweetland  v.  Olsen,  11  Mont.  27, 
27  Pac.  339;  Jones  v.  Deardorff,  4 
Cal.  App.  18,  87  Pac.  213;  Chamber- 
•  lain  v.  Amter,  1  Colo.  App.  13,  27 
Pac.  87;  King  v.  Ackroyd,  28  Colo. 
488,  66  Pac.  906 ;  Crippen  v.  Comstock, 
17  Colo.  App.  89,  66  Pac.  1074;  Bes- 
semer etc.  Co.  v.  Woolley,  32  Colo.  437, 
105  Am.  St.  Rep.  91,  76  Pac.  1051 
(saying  that  the  passing  as  apparte- 
nance  is  a  question  of  fact  depending 
upon  the  intention  of  the  grantor,  as 
expressed  in  the  deed  or  as  rlrawn 
from  the  surrounding  circumstances, 
or  whether  incidental  and  necessary 
to  the  land)  ;  Hays  v.  Buzard,  31 
Mont.  74,  77  Pac.  426  (saying  the 
question  is,  "What  rights  does  the 
plaintiff  appear  to  have  acquired  in 
the  water  under  that  deed,  in  the 
light  of  the  facts  as  they  then  existed, 
and  the  behavior  of  the  parties  with 
reference  to  it  down  to  the  commence- 
ment of  the  action?");  Davis  v.  Ran- 
dall (1909),  44  Colo.  488,  99  Pac. 
322,  holding  intention  to  include  water- 
right  in  suit  rebutted. 

23  Smith  v.  Deniff,  24  Mont.  20,  81 
Am.  St.  Rep.  408,  60  Pac.  398,  50  L. 
R.  A.  741. 


590   (3d  ed.)    Pt.  III.     THE  LAW  OF  PRIOR  APPROPRIATION.          §  552 

usually  been  held  sufficient  proof  of  intention  to  pass  it,  in  the 
absence  of  express  reservation  in  the  deed,  or  other  evidence  to 
the  contrary.  Such  proof  raises  a  presumption  of  intention  to 
include  the  water-right  in  the  sale.  "Although  a  water-right 
may  be  appurtenant  to  the  land,  it  is  the  subject  of  property, 
and  may  be  transferred  either  with  or  without  the  land.  Being, 
therefore,  a  distinct  subject  of  grant,  and  transferable  either  with 
or  without  the  land,  whether  a  deed  to  land  conveys  the  water- 
right  depends  upon  the  intention  of  the  grantor,  which  is  to  be 
gathered  from  the  express  terms  of  the  deed ;  or,  when  it  is  silent 
as  to  the  water-right,  from  the  presumption  that  arises  from  the 
circumstances,  and  whether  such  right  is  or  is  not  incident  to 
and  necessary  to  the  beneficial  enjoyment  of  the  land."24  In  a 
later  case  in  the  same  court  much  the  same  words  were  used.1 
In  another  case  it  is  said:  "A  deed  of  a  millsite  and  mill  upon 
which  a  right  to  divert  water  from  a  stream  and  to  use  it  to 
operate  a  mill  has  been  exercised  conveys  the  water-right  as  an 
appurtenance  to  the  mill,  in  the  absence  of  any  reservation  of  it, 
of  any  conveyance  of  it  to  another,  and  of  any  other  evidence 
that  the  grantor  did  not  intend  to  convey  it."  2 

The  presumption,  however,  may  be  rebutted.  Reservation  or 
sale  separately  is  open  to  proof.  The  expression  in  the  deed  that 
certain  specific  water-rights  shall  pass  has  been  held  per  se  a  reser- 
vation of  all  others  not  mentioned;  that  is,  the  expression  of  one 
is  sufficient  evidence  to  exclude  any  presumption  of  intent  to 
include  others  not  mentioned.  Where  a  deed  to  land  specifically 
described  the  water-rights  granted,  the  grantee  did  not  take  by 
implication  additional  water-rights  to  irrigate  a  part  of  the  land 
which  could  not  be  irrigated  from  the  rights  granted,  even  though 
the  parties  did  not  adhere  in  their  use  strictly  to  the  terms  of. 
the  grant.3 

The  declarations  of  the  grantor  subsequent  to  the  deed  are  not 
admissible  in  evidence,  it  appears,  upon  the  question  of  the  inten- 
tion at  the  time  of  sale.4 

24  Cooper  v.  Shannon,  36  Colo.  98,  1  Da, via  v.  Randall  (1909),  44  Colo. 
118  Am.  St.  Rep.  95,  85  Pac.  177,  cit-  488,  99  Pac.  322. 

ing    Strickler    v.     City    of    Colorado  *  J"**^™™**  ^'Xo 

.          i*  n  T      ci    OK   A        Qf    -D^       104  Fed.  404,  45  C.  C.  A.  185,  21 
Springs,  16  Colo.  61,  25  Am.  St.  Rep.          jn  ^ 

245,  26  Pac.  313;   Arnett  v.  Linhart,  3  ^Jfc  y   Randall  (1909),  44  Colo. 

21  Colo.  188,40  Pac.  355;  Bessemer  etc.  48g    99  pac    322. 

Ry.  Co.  v.  Woolley,  32  Colo.  437;"  105  4'josselyn  v.  Daly,   15   Idaho,  137, 

Am.  St.  Rep.  91.  76  Pac.  1053.  96  Pae.  568. 


§552 


Ch.  24.     CONTEACTS— CONVEYANCES. 


(3ded.)  591 


Summing  up,  it  may  be  said  that  a  water-right  of  appropriation 
will  not  pass  on  a  sale  of  land  if  not  so  intended,  and  it  is  hence 
not  strictly  accurate  to  say  that  a  deed  of  land  per  se  passes  a 
water-right  used  for  its  irrigation;  but  in  the  absence  of  any  evi- 
dence of  such  intent  to  the  contrary  it  is  well  settled  that  an  ap- 
purtenant water-right  of  appropriation  passes  with  the  land  on 
a  sale  though  not  mentioned  in  the  deed,  nor  the  word  "  appurte- 
nance" used.5 


5  Federal  Courts. — North  America 
etc.  Co.  v.  Adams,  104  Fed.  440,  45 
C.  C.  A.  185,  21  Morr.  Min.  Rep.  65 
(appurtenant  to  millsite)  ;  Wilson  v. 
Higbee  (C.  C.),  62  Fed.  723;  Bank 
of  British  N.  A.  v.  Miller  (Or.),  6 
Fed.  545,  7  Saw.  163 ;  Rickey  etc.  Co. 
v.  Miller,  152  Fed.  14,  81  C.  C.  A. 
207. 

Alaska. — Not  pass  as  appurtenance 
without  special  mention  or  agreement 
to  that  effect.  Noland  v.  Coon,  1 
Alaska,  36.  But  from  what  follows 
in  the  opinion,  it  appears  that  what  is 
meant  is  only  that  it  will  not  pass 
without  mention,  in  the  absence  of 
proof  first  that  it  was  in  fact  appur- 
tenant. 

California. — Cases  cited  supra.  Also 
Civ.  Code,  sees.  1084,  1104;  Stanislaus 
W.  Co.  v.  Bachman,  152  Gal.  716,  93 
Pac.  858,  15  L.  R.  A.,  N.  S.,  359; 
Cave  v.  Crafts,  53  Cal.  135 ;  Farmer  v. 
Ukiah  Water  Co.,  56  Cal.  11;  Cross  v. 
Kitts,  69  Cal.  221,  58  Am.  St.  Rep. 
558,  10  Pac.  409;  Clyne  v.  Benicia 
Water  Co.,  100  Cal.  310,  34  Pac.  714; 
Jones  v.  Deardorff,  4  Cal.  App.  18,  87 
Pac.  213;  McShane  v.  Carter,  80  Cal. 
310,  22  Pac.  178;  Smith  v.  Corbit,  116 
Cal.  587,  48  Pac.  725.  See  Rianda  v. 
Watsonville  etc.  Co.,  152  Cal.  523,  93 
Pac.  79;  Corea  v.  Higuera,  153  Cal. 
451,  95  Pac.  882,  17  "L.  R.  A.,  N.  S., 
1018 ;  Rubio  Canyon  W.  Co.  v.  Everett 
(1908),  154  Cal.  29,  96  Pac.  811,  say- 
ing that  an  easement  for  a  pipe-line 
appurtenant  to  land  passes  on  a  sale 
of  the  land  "even  if  the  deed  had  not 
expressly  purported  to  convey  the  'ap- 
purtenances' with  the  land";  Oliver  v. 
Burnett,  10  Cal.  App.  403,  102  Pac. 
223  (citing  Pogue  v.  Collins,  146  Cal. 
435,  80  Pac.  623;  Pendola  v.  Ramm, 
138  Cal.  517,  71  Pac.  624;  Jones  v. 
Sanders,  138  Cal.  405,  71  Pac.  506). 
The  Civil  Code,  section  1104,  provides: 


"A  transfer  of  real  property  passes 
all  easements  attached  thereto,  and 
creates  in  favor  thereof  an  easement 
to  use  other  real  property  of  the  per- 
son whose  estate  is  transferred  in  the 
same  manner  and  to  the  same  extent 
as  such  property  was  obviously  and 
permanently  used  by  the  person  whose 
estate  is  transferred,  for  the  benefit 
thereof,  at  the  time  when  the  transfer 
was  agreed  upon  or  completed."  See, 
also,  Civ.  Code,  sees.  1084,  3522. 

Colorado. — Cooper  v.  Shannon,  36 
Colo.  98,  118  Am.  St.  Rep.  95,  85  Pac. 
177;  Strickler  v.  City  of  Colorado 
Springs,  16  Colo.  6,1,  25  Am.  St.  Rep. 
245,  26  Pac.  313;  Arnett  v.  Linhart, 
21  Colo.  188,  40  Pac.  355;  Bessemer 
etc.  Co.  v.  Woolley,  32  Colo.  437,  105 
Am.  St.  Rep.  91,  76  Pac.  1053,  and 
other  cases  already  cited.  An  impres- 
sion formerly  prevailed  at  the  bar  to 
the  contrary. 

Kansas.— Stats.  1911,  c.  215,  p.  379. 

Montana. — Smith  v.  Denniff,  24 
Mont.  20,  81  Am.  St.  Rep.  408,  60 
Pac.  398,  50  L.  R.  A.  741;  Tucker  v. 
Jones,  8  Mont.  '  225,  19  Pac.  571; 
Sweetland  v.  Olsen,  11  Mont.  27,  27 
Pac.  339;  Crawford  v.  Minn.  Co.,  15 
Mont.  153,  38  Pac.  713;  Sloan  v. 
Glancy,  19  Mont.  70,  47  Pac.  334; 
Bullerdick  v.  Hermsmeyer,  32  Mont. 
541,  81  Pac.  334;  Hays  v.  Buzard,  31 
Mont.  74,  77  Pac.  426. 

Nevada. — Rickey  etc.  Co.  v.  Miller, 
152  Fed.  14,  81  C.  C.  A.  207;  Wilson 
v.  Higbee  (Nev.),  62  Fed.  723. 

Oregon. — Simmons  v.  Winters,  21 
Or.  35,  28  Am.  St.  Rep.  727,  27  Pac. 
7;  Hindman  v.  Rizor,  21  Or.  112,  27 
Pac.  13;  Coventon  v.  Seufert,  23  Or. 
548,  32  Pac.  508;  Low  v.  Schaffer,  24 
Or.  239,  33  Pac.  678;  Nevada  Ditch 
Co.  v.  Bennett,  30  Or.  59,  60  Am.  St. 
Rep.  777,  45  Pac.  472;  Turner  v. 
Cole,  31  Or.  154,  49  Pac.  971;  North 


592  (3d  ed.)    Pt.  III.     THE  LAW  OF  PRIOR  APPROPRIATION.          §  553 

The  same  is  true,  at  common  law,  of  contractual  water-rights6 
and  under  the  common  law  of  riparian  rights  the  riparian  right 
itself  passes  ipso  facto  with  the  riparian  land  on  a  sale  as  part  and 
parcel  thereof.7 

(Sd.ed.) 

§  553.     Upon  Subdivision  of  Land. — The  water-right  will  pass 

as  an  appurtenance  in  parts  on  a  sale  of  the  land  in  parts.  In 
subdividing  a  tract  it  will  be  presumed  that  a  water-right  passes 
in  proportion  to  the  relative  size  of  the  subdivision.  The  pur- 
chaser of  part  of  land  for  which  water  was  appropriated  will  be 
assumed  to  own  the  proportion  of  the  water  awarded  to  the  entire 
tract  that  his  tract  bears  to  the  entire  tract.8  "Where  a  water- 
right  is  appurtenant  to  a  whole  tract  which  is  thereafter  sub- 
divided, though  not  alienated,  the  subsequent  use  determines  which 
part  it  becomes  appurtenant  to,  or  if  use  is  on  both,  how  much 
is  appurtenant  to  each.9  In  one  case  an  appropriation  was  made 
for  the  whole  of  a  ranch,  which  then  comprised  what  now  con- 
stitutes the  lands  owned  by  both  appellant  and  respondent,  so  that 
the  appropriation  became  as  much  appurtenant  to  one  tract  as 
the  other.  Subsequently,  the  ranch  became  divided  into  two 
farms,  one  of  which  was  thereafter  mortgaged.  It  was  held  that 
the  question  as  to  the  particular  lands  to  which  this  water-right 

Powder  M.  Co.  v.  Coughanour,  34  Or.  p.  279  et  seq.,  citing  inter  alia,  Hinch- 

9,  54  Pac.  223;  Mattis  v.  Hosmer,  37  cliffe  v.  Earl  of  Kinnoul,  5  Bing.  N. 

Or.  523,  62  Pac.  17,  632;  Oregon  etc.  C.  1,   6  Scott,  650;   United  States  v. 

Co.  v.  Allen  etc.  Co.,  41  Or.   209,  93  Appleton,     1     Sum.    492,     Fed.    Cas. 

Am.  St.  Rep.  701,  69  Pac.  455.  14,463 ;  also,  Grant  v.  Chase,  17  Mass. 

Texas. — Toyaho     Cr.     Irr.     Co.     v.  443,  9  Am.  Dec.  161;  Hazard  v.  Rob- 

Hutchins,  21   Tex.  Civ.  App.   274,   52  inson,   3   Mason,   272,   278,   Fed.   Cas. 

S.  W.  101.  No.  6281;  Preble  v.  Reed,  17  Me.  169; 

Utah. — Smith,  v.  N.  Canyon  W.  Co.,  Pickering  v.  Stapler,  5  Serg.  &  R.  107, 

-16  Utah,  194,  52  Pac.  283;  Snyder  v.  9   Am.   Dec.   336;    Swartz   v.   Swartz, 

Murdock,  20  Utah,  419,   59  Pac.  91;  4  Pa.  353,  45  Am.  Dec.  697;  Vermont 

George  v.  Robison  et  al.,  23  Utah,  79,  etc.  Ry.  Co.  v.  Hills,  23  Vt.  681.     See, 

63  Pae.  819;   Comp.  Laws,  1907,  sec.  also,  Whittelsey  v.  Porter   (1909),  82 

1288x32.  Conn.  95,  72  Atl.  593;  Smith  v.  Dres- 

Washington. — Geddis   v.   Parrish,   1  selhouse,    152   Mich.   451,    116  N.   W. 

Wash.   587,   21   Pac.   314;    Murray  v.  387;  Lord  Blackburn  in  Dalton  v.  An- 

Briggs,  29  Wash.  245,  69  Pac.  765.  gus,  L.  R.   6  App.  Cas.  825. 

Wyoming. — Frank  v.  Hicks,  4  Wyo.  7  Infra,  sees.  711,  844  et  seq. 
502,  35  Pac.  475,  1025;  Farm  Inv.  Co.  8  Booth  v.  Trager  (1909),  44  Colo. 
v.  Gallup,  13  Wyo.  20,  76  Pac.  917;  409,  99  Pac.  60.  See  Ruhnke  v.  Au- 
Willey  v.  Decker,  11  Wyo.  496,  100  bert  (Or.),  113  Pac.  38.  As  to  sub- 
Am.  St.  Rep.  939,  73  Pac.  210.  See  division  of  riparian  land  under  the 
Johnston  v.  Little  Horse  etc.  Co.,  13  common  law  of  riparian  rights, 
Wyo.  208,  110  Am.  St.  Rep.  986,  79  see  infra,  sees.  769  et  seq.,  845  et  seq. 
Pac.  22,  70  L.  R.  A.  341.  9  Josslyn  v.  Daly,  15  Idaho,  137,  96 

6  Aneell  on  Watercourses,  7th  ed.,  Pac.  568. 


§554  Ch.  24.     CONTRACTS— CONVEYANCES.  (3ded.)  593 

was  appurtenant  must  turn  upon  the  use  and  application  of  the 
water  as  the  same  existed  at  the  time  the  mortgage  was  exe- 
cuted.10 Where  land  is  partitioned  and  there  is  a  ditch  right 
across  the  middle  piece  for  the  benefit  of  another  portion,  the 
grantee  of  such  other  portion  has  a  right  to  such  ditch  as  an 
appurtenance  thereto.11 

Where  an  estate  is  divided,  the  appurtenant  rights  attach  to  all 
the  divided  portions  in  the  absence  of  express  evidence  of  a  con- 
trary intent.  In  one  case  there  was  an  easement  appurtenant  to 
an  eighty  acre  tract,  in  the  use  of  a  ditch  for  irrigation.  The 
owner  of  the  tract  divided  it  and  sold  a  separate  ten  acres  thereof 
not  touching  upon  the  ditch.  It  was  held  that  the  easement 
became  appurtenant  to  the  segregated  portion  as  well  as  the  rest, 
with  the  right  to  extend  the  ditch  to  the  ten  acres  over  any 
necessary  part  (doing  the  least  possible  interference  thereto)  of 
the  rest  of  the  tract,  this  right  to  connect  the  ten  acres  with  the 
ditch  arising  not  as  an  easement  of  necessity  ending  with  the 
necessity,  but  arising  in  grant  and  by  necessary  implication  in 
the  deed.12 

The  statements  made  in  this  section  must  be  understood  to 
carry  the  qualification  made  in  the  preceding  section — that  the 
deed  be  silent,  and  that  there  be  no  evidence  showing  any  inten- 
tion to  the  contrary.  If  there  be  sufficient  evidence  of  a  different 
intent,  such  evidence  will  govern.  Thus,  where  land  was  granted 
to  the  several  daughters  of  the  grantor,  with  specific  water-rights 
appurtenant  to  each  parcel,  the.  fact  that  they  did  not  strictly 
adhere  to  their  respective  water-rights  would  not  enlarge  the  rights 
of  a  subsequent  grantee  of  one  of  them.  Nor  would  any  one  of 
them  be  entitled  to  a  share  in  any  water-right  other  than  that 
specifically  granted,  even  though  such  other  might  be  indispensa- 
ble for. proper  irrigation.13 

(3d  ed.) 

§  554.  Appurtenance  (Continued). — Where  a  grant  by  impli- 
cation includes  a  right  to  take  water  for  irrigation  from  a  given 

10  Josslyn  v.   Daly,   15   Idaho,   137,  43  N.  J.  Eq.  62,  10  Atl.  276;   Elliott 
96  Pac.  568.  v.  Rhett,  5  Rich.  (S.  C.)  405,  57  Am. 

11  Oliver  v.  Burnett  (1909),  10  Cal.  Dec.   750;   Wilson  v.  Higbee   (C.  C.), 
App.  403,  102  Pac.  223.  62  Fed.   723;   Lampman  v.  Milks,  21 

12  Tarpey  v.  Lynch  (1909),  155  Cal.  N.  Y.  505. 

407,  101   Pac.   10.     See.  also,  Cave  v.  is  Davis  v.  Randall  (1909),  44  Colo. 

Crafts,  53  Cal.  135;  Kelly  v.  Dunning,      488,  99  Pac.  322. 
Water  Rights — 38 


594  (3d  e<L)    Pt.  in.     THE  LAW  OF  PRIOR  APPROPRIATION.          §  554 

ditch,  the  grantor  cannot  prevent  the  grantee  on  the  ground  that 
there  are  other  available  supplies  he  could  purchase  from  stran- 
gers.14 

Viewed  as  independent  property  rights,  ditches  and  the  right 
to  use  the  water  conveyed  by  them  are  property  subject  to  taxa- 
tion; but,  when  made  appurtenant  to  lands,  they  have  no  inde- 
pendent use,  and  are  not  separately  taxable  under  Montana 
statutes.  The  tax  on  the  land  includes  the  ditch  and  water,  and 
it  is  thus  already  taxed.15 

Several  ditches  and  water-rights  may  be  so  connected  by 
branches  as  to  constitute  a  single  parcel  of  real  property,  to  be 
sold  as  a  whole  and  not  separately  on  execution  sale.16 

A  water-right,  though  acquired  after  a  mortgage  and  becoming 
appurtenant  to  the  mortgaged  land,  will  pass  to  the  foreclosure 
sale  purchaser.17 

Water  appropriated  for  use  on  certain  lands  by  a  trespasser  on 
the  lands  does  not  become  appurtenant  thereto,  and  a  purchaser 
of  the  land  from  the  true  owner  gets  no  right  to  the  water,  but 
the  water-right  belongs  to  the  trespasser  for  use  on  other  land ; 18 
and,  on  the  other  hand,  water  appurtenant  to  the  land  before  the 
trespass  remains  appurtenant  thereto  and  is  not  severed  therefrom 
by  the  trespasser's  use,  the  trespasser  being  lawfully  evicted.19 

The  water-right  may  be  appurtenant  to  a  specific  ditch  or  artifi- 
cial watercourse  through  which  the  waters  flow  after  diversion,20 
or,  vice  versa,  the  ditch  appurtenant  to  water-right.21  A  further 
discussion  of  this  point  may  be  found  elsewhere.22 

It  has  been  held  that  where  one  has  a  water-right  appurtenant 
to  certain  land  and  grants  all  his  rights  to  another,  he  is  not 

14  Tarpey  v.  Lynch  (1909),  155  Cal.  Cal.  228,  20  Am.  St.  Rep.  217,  24  Pac. 

407,  101  Pac.  10.  645;    Seaward  v.   Pacific  etc.   Co.,  49 

is  Hale  v.  Jefferson  County  (1909),  Or.  157,  88  Pac!  963. 

39  Mont.  137,  101  Pac.  977.  19  Alta  etc.  Co.  v.  Hancock,  85  Cal. 

16  Gleason  v.  Hill,  64  Cal.  18.  228,  20  Am.  St.  Rep.  217,  24  Pac.  645. 

w  ^?D±UScJaper  C«'™   ^T1^'  20  Williams  v-  Harter>  121  Cal-  47» 

\5    £  *  7£Q      n  '  \       «  53  Pac.  405;  Fudickar  v.  East  River- 

A.,  N.  S,  359.     Compare  as  to  after-      si(Je   ^  ^       m  ^   pac 

acquired   property    Mitchell   v.   Canal  Q2      Lower    >     CQ        R.     'g          c 

Co.,  75  Cal    464    17  Pac    246;   Farm  6Q  ^    40g     R         lds  v    -^           51' 

etc.  Co.  v   Alta  etc.  Co     28  Colo    408  c  }   ^   g  fa   '  m      R 

65  Pac.  22 ;  Bear  Lake  Co.  v.  Garland, 

164  U.  S.  1    17  Sup.  Ct.  Rep.  7,  41  L.  21  Jacob  v-  Lorenz,  98  Cal.  332,  33 

Ed.  327.  Pac-  119- 

is  Smith  v.  Logan,  18  Nev.  149,  1  22  Supra,  see.  456. 
Pac.  678 ;  Alta  etc.  Co.  v.  Hancock,  85 


§555  Ch.  24.     CONTEACTS— CONVEYANCES.  (3ded.)  595 

barred  from  using  the  water  upon  other  land,  but  only. upon  the 
land  first  mentioned.23 

D.     PAKOL  SALE. 
(3d  ed.) 

§  555.  Parol  Sale  of  Possessory  Rights  on  the  Public  Domain. 
In  the  treatment  of  parol  sale  of  water-rights,  there  is  a  peculi- 
arity afforded  by  the  law  of  appropriation.  If  the  grantee 
incurs  considerable  expense,  and  makes  improvements  on  the  faith 
of  the  parol  sale,  the  usual  rule  of  specific  performance  in  equity, 
the  part  performance  taking  the  case  out  of  the  statute  of  frauds, 
applies.24  But  the  matter  to  which  we  refer  is  independent  of 
that. 

The  matter  brings  us  back  to  the  origin  of  the  doctrine  of 
appropriation,  as  a  possessory  right  on  the  public  domain,  and 
thereby  back  to  the  opening  chapters  of  Part  II  of  this  book. 
It  was,  in  pioneer  times,  declared  upon  strict  legal  theory  that 
the  California  pioneers  were  trespassers  upon  public  lands.  The 
law  did  not  become  settled  to  the  contrary  until  the  act  of  1866, 
when  the  United  States  as  landowner  then  "acknowledged  and 
confirmed"  their  rights.  Until  that  time,  the  theory  that  they 
were  mere  trespassers  showed  itself  in  many  forms,  such  as  that, 
the  estate  not  being  one  of  freehold,  a  justice  of  the  peace  had 
(it  was  contended)  jurisdiction  over  mining  claims;  also  that 
dower  did  not  exist  therein,  not  being  a  freehold,  and  other 
similar  contentions,  concerning  which  the  reader  may  consult  other 
books.25  In  one  form,  especially,  this  took  strong  hold  in  the 
early  decisions,  to  wit,  that  a  transfer  of  a  mining  claim  operated 
as  a  surrender  of  the  grantor's  right  and  the  acquisition  of  a  new 
one  by  the  grantee  on  taking  possession,  so  that  no  writing  was 
needed,  and  transfers  of  possessory  rights  on  the  public  domain 
were  held  not  within  the  statute  of  frauds.1  The  supreme  court 
of  the  United  States  affirmed  this  view.2  And  it  crept  also  into 
early  water  decisions,3  and  from  reference  to  them,  has  partly 

23  Duckworth    v.    Watsonville    Co.,  Rep.  323.     And  later  again  in  Black 
158  Cal.  206,  110  Pac.  927,  sed  qu.  y    Elkhorn  M.  Co.,  163  U.  S.  445,  16 

24  Infra,  next  section.  p  T 

25  Yale     on     Mining     Claims     and  SuP-  Ct-  **P-  1101>  41  L-  Ed-  221>  18 
Water  Rights,  and  Lindley  on  Mines.  Morr.    Min.    Rep.    375,    declared    this 

1  Table  Mt.  M.  C.  v.  Stranahan,  20  principle  to  be  correct. 
Cal.  198,  9  Morr.  Min.  Rep.  457. 

2  Union  etc.  Co.  v.  Taylor,  100  U.          3  Smith  v-  O'Hara,  and  Chiatovich 
8.  39,  25  L.  Ed.  541,  5  Morr.  Min.  v.  Davis,  infra. 


596   (3d  ed.)    Pt.  III.     THE  LAW  OF  PRIOR  APPROPRIATION.          §  555 

come  down  to  the  present  day  as  a  rudimentary  survival,  long 
after  the  theory  on  which  it  rested  ceased  to  be  operative. 

For  the  "trespasser"  theory  from  the  start  had  strong  opposi- 
tion in  the  "free  development"  theory  of  a  grant  to  the  appro- 
priator  from  the  United  States — a  full  title  of  the  dignity  of  a 
fee,  and  equivalent  to  other  freehold  interests  in  realty ;  the  theory 
which  finally  prevailed  and  became  law  under  the  act  of  1866.4 
Consequently  it  is,  as  already  shown,  now  held  that  transfers  of 
water-rights  are  ineffectual  as  transfers  without  a  writing,  within 
the  statute  of  frauds.5  To-day  a  sale  equivalent  to  a  sale  of  any- 
thing else,  operating  as  a  transmission  of  a  right,  not  as  the  crea- 
tion of  a  new  one,  is  recognized  if  in  writing.8  The  possessory 
estate  thus  acquired  has  been  elevated  to  the  dignity  of  other 
interests  in  realty,  being  recognized  as  an  express  grant  from  the 
government.  But  the  early  theory,  as  concerns  water-rights  at 
least,  remains  as  a  survival  in  this  matter  of  parol  sales. 

A  water-right,  then,  may  be  transferred  by  a  parol  sale,  pro- 
vided the  grantee  enters  into  possession.7  The  same  result  will 
be  accomplished  by  a  faulty  deed.8  The  rights  of  the  grantee, 
however,  are  different  from  those  under  a  true  sale,  in  writing. 
He  does  not  acquire  the  grantor's  right  by  transmission;  does 
not  step  into  his  shoes;  but  acquires  a  new  right  as  an  appro- 
priator  by  actual  diversion.  Consequently,  the  grantee  loses  the 
priority  his  grantor  had.  A  parol  sale  allows  claimants  between 
the  original  appropriation  and  the  date  of  the  parol  sale  to  assert 
priority  in  their  favor  as  against  the  grantee.9  The  California 
court  says:  "The  objection  made  by  defendant  is,  that  plaintiffs 

4  Supra,  sees.  89,  92  et  seq.  williger,  144  Cal.  456,  77  Pac.   1034; 

5  The   rule   as   to    sales   of   mining  Chiatovich  v.  Davis,  17  Nev.   133,  28 
claims  is  now  also  the  same.    Costigan  Pac.    239;    Salina   etc.    Co.   v.    Salina 
on  Mining  Law,  pp.  497,  498.  etc.   Co.,   7   Utah,   456,   27   Pac.   578; 

6  McDonald  v.  Askew,  29  Cal.  200,  Union  Mill  &  Min.  Co.  v.  Dangberg, 
1  Morr.  Min.  Rep.  660.     As  to  water-  81    Fed.    73,    citing    cases;    Low    v. 
rights,  cases  already  cited,  and  com-  Schaffer,    24   Or.    239,    33-  Pac.    678; 
pare    California    Civil    Code,    section  South  Tule  etc.  Co.  v.  King,  144  Cal. 
1411,   "successor   in  interest."     As   to  450,    77    Pac.     1032.     See    Smith    v. 
mining  claims,  Lindley  on  Mines,  sec-  Green,    109    Cal.    235,   41   Pac.    1022; 
tion  642.  Bowen  v.  Webb  (1908),  37  Mont.  479, 

7  Smith  v.   O'Hara,  43   Cal.  371,   1  97   Pac.   839;    Gould   on   Waters,   sec. 
Morr.  Min.  Rep,  671;  Griseza  v.  Ter-  234;    Pomeroy    on    Riparian    Rights, 
williger,  144  Cal.  456,  77  Pac.  1034.  sees.  58,  89 ;  Kinney  on  Irrigation,  sec. 

8  Barkley  v.  Tieleke,  2  Mont.  59,  4  253.     See,  also,  supra,  sec.  390,  use  of 
Morr.   Min.  Rep.   666.  abandoned    ditches.     See    Kan.    Gen. 

9  Smith  v.   O'Hara,  43   Cal.   371,   1  Laws,  1909,  sec.  4436. 
Moxr.  Min.  Rep.  671;   Griseza  v.  Ter- 


§555  Ch.  24.     CONTRACTS— CONVEYANCES.  (3ded.)  597 

could  not  prove  title  by  a  parol  sale,  the  interest  conveyed  being 
realty.  Plaintiffs  answer  that  the  evidence  was  not  offered  to 
prove  title,  but  as  declarations  against  interest  and  as  showing 
abandonment,  to  defeat  defendant's  alleged  title,  and  that  the 
court  did  not  admit  the  evidence  to  prove  title.  Mr.  Kinney 
states  the  doctrine  to  be,  that  the  right  to  the  use  of  the  water 
acquired  by  prior  appropriation,  and  the  structure  through  which 
the  diversion  is  effected,  must  be  conveyed  by  a  written  instru- 
ment, as  in  the  case  of  real  property,  and  that  a  verbal  sale  is 
nugatory.'10  The  author  further  says,  however,  that  such  a  sale 
works  an  abandonment,  and  the  vendee  takes  his  right  simply  as 
a  subsequent  appropriator  in  his  regular  order  with  subsequent 
appropriators.11  Mr.  Pomeroy  says  that  abandonment  may  be 
express  and  immediate  by  the  intentional  act  of  the  appropriator, 
or  may  be  implied  from  his  neglect,  failure  to  use  due  diligence 
in  the  construction  of  his  works,  nonuse  of  them  after  completion 
and  the  like.  The  general  doctrine  concerning  the  effect  of  aban- 
donment is  stated  to  be,  that  the  prior  appropriator  loses  all  his 
exclusive  rights  to  take  or  use  the  water  which  he  had  acquired. 
'A  verbal  sale  and  transfer  of  his  water-right  by  a  prior  appro- 
priator operates  ipso  facto  as  an  abandonment  thereof.  Such 
act  shows  an  unequivocal  intent  on  the  part  of  the  appropriator 
to  give  up  and  relinquish  all  of  his  interest,  and,  as  it  does  not 
effect  any  transfer  thereof  to  the  attempted  assignee  or  vendee, 
the  only  possible  result  is  an  immediate  and  complete  abandon- 
ment. ' 12  It  is  not  necessary,  we  think,  to  invoke  the  rule  as  to 
an  executed  parol  contract  such  as  arose  in  Flickinger  v.  Shaw,13 
nor  to  pass  upon  the  applicability  of  the  principle  there  enun- 
ciated to  the  present  case.  The  evidence  clearly  wras  admissible 
to  show  abandonment,  and  may  be  restricted  to  that  object,  and 
thus  restricted  fully  justifies  the  finding  of  the  court.  It  was  not 
admitted  to  prove  title,  as  clearly  appears  from  the  ruling  of  the 
court.  Defendant  claimed  through  Terwilliger,  her  husband,  and 
offered  evidence  in  support  of  her  claim.  It  was  competent  for 
plaintiffs  to  show  that  long  before  defendant's  deed,  and  con- 
tinuously for  many  years,  he  had  treated  his  right  as  abandoned, 

10  Citing  cases.  13  87  Cal.  126,  22  Am.  St.  Rep.  234, 

11  Kinney  on  Irrigation,  sees.   253,       25   Pac.   268,   11   L.   R.   A.   134.     See 
255,  264.  next  section. 

12  Citing  Pomeroy  on  Water  Rights, 
sees.  96,  97. 


598  (3d  ed)    Pt.  III.     THE  LAW  OF  PRIOR  APPROPRIATION.         §  555 

and  his  verbal  sale  was  admissible  as  tending  to  establish  this 
fact.  The  sale  conferred  no  title  upon  Musgrave,  but  the  subse- 
quent use  by  him  and  his  associates  and  their  successors  of  all 
the  water  was  an  appropriation  of  whatever  water  Terwilliger 
was  entitled  to  prior  to  the  sale."14 

This  principle  that  the  grantee  on  a  parol  sale  acquires  a  new 
right  as  an  appropriator  by  actual  diversion,  but  that  it  operates 
by  way  of  abandonment,  forfeiting  priority,  seems  in  force  in 
California.  But  in  Montana  and  Oregon  it  is  losing  ground. 
There  the  courts  have  refused  to  apply  it  to  the  ease  of  a  settler 
or  squatter  who  has  taken  no  steps  to  obtain  title  by  filing  upon 
the  land.  Such  a  bare  settler  has  a  possessory  right  to  the  land 
which,  it  is  held,  may  be  transferred  by  parol,  and  the  parol  sale 
will  carry  the  water-right  as  an  appurtenance,  preserving  prior- 
ity.15 In  one  Montana  case16  the  court  says:  "We  are  satisfied 
that  a  verbal  transferee  of  a  settler's  claim  and  water-right  ap- 
purtenant thereto,  who  takes  possession  of  the  same,  is  the 
successor  in  interest  of  the  original  appropriator  of  the  water, 
that  he  does  not  take  it  by  recapture,  and  that  he  can  avail  him- 
self of  his  predecessor's  priority."  In  this  case,  Barkley  v. 
Tieleke  17  was  held  to  have  arisen  out  of  mining  conditions  and 
not  to  be  applicable  to  appropriations  of  water  for  agricultural 
purposes.  Barkley  v.  Tieleke  was  disapproved,  if  not  actually 
overruled,  and  as  it  was  relied  on  by  Pomeroy,18  and  Pomeroy 
was  relied  on  by  the  California  court  in  the  late  case  cited  supra, 
this  considerably  weakens  the  rule  that  a  parol  sale  operates  by 
way  of  abandonment.  In  Wyoming,  while  at  first  disapproved,13 
the  principle  of  the  rule  has  been  reasserted  in  another  connec- 
tion.20 A  recent  Oregon  case  says  it  is  unable  to  see  any  reason 
for  the  rule,  and  the  usual  view  to-day  is  that  absence  of  a  writing 
cannot  be  raised  by  strangers  to  the  sale  in  any  event.21 

14  Griseza  v.   Terwilliger,   144  Gal.          17  Cited  supra. 

456,   77  Pac.   1034.     See,  also,  Duck-  18  Sees.  58,  89,  96,  97. 

worth  v.  Watsonville  Co.,  158  Cal.  206,  19  Whalon  v.  North  Platte  etc.  Co., 

110  Pac.  927,  discussed  supra,  sec.  246.  11  Wyo.  313,  71  Pac.  995 ;   Johnston 

15  McDonald   v.   Lannen,   19   Mont.  v.  Little  Horse  Co.,  13  Wyo.  208,  110 
78,  47  Pac.  648 ;  Wood  v.  Lowney,  20  Am.  St.  Rep.  986,  79  Pac.  22,  70  L. 
Mont.  273,  50  Pac.  794 ;  Hindman  v.  R.  A.  342. 

Rizor,  21  Or.  112,  27  Pae.  13   (citing  20  Supra,      sec.      509,      restricting 

Oregon  cases)  ;  Turner  v.  Cole,  31  Or.  changes  of  use. 

154,  49  Pac.  972;   Watts  v.   Spencer,  21  Watts  v.  Spencer,  51  Or.  262,  94 

51   Or.   262,  94  Pac.   39.  Pac.  39.     Supra,  sec.  542. 

16  McDonald  v.  Lannen,  supra.    See,  "The  right  of  a  person  claiming  an 
also,       Featherman       v.       Hennessey  appropriation     of     water     cannot     be 
(Mont.),  113  Pae.  751.  tacked  to  that  of  a  mere  squatter,  who, 


§555  Ch.  24.     CONTRACTS— CONVEYANCES.  (3ded.)  599 

The  reasoning  on  which  this  rule  is  based  would  lead  to  the  harsh 
result  that  a  parol  sale  or  a  faulty  deed  endangers  the  rights  of 
the  grantor,  by  working  an  abandonment  of  his  priority  in  case 
the  object  of  the  parol  sale  is  not  carried  out.  Until  possession 
is  transferred  (possession  of  ditches,  etc.,  since  that  is  equivalent 
to  possession  of  the  water-right),  he  would  not  be  harmed,  as 
until  then  the  parol  sale  and  abandonment  would  not  be  complete. 
But  if  the  grantee,  having  taken  possession,  wishes  to  retransfer 
to  the  grantor,  or  if,  for  some  reason,  the  grantor  wishes  to  re- 
enter,  as,  for  example,  in  case  of  default  on  promises  by  the 
grantee,  the  grantor  himself  could  now  claim  only  as  an  appro- 
priator  by  actual  diversion,  and  would  have  lost  his  priority. 
The  writer  has  not  seen  any  decision  on  the  point;  but  it  might 
properly  be  held  that  the  abandonment  is  only  conditional;  that 
a  parol  sale  is  evidence  of  an  abandonment,  but  not  conclusive, 
depending  on  the  success  of  the  whole  plan  of  which  it  was  a 
part.  This  would  be  supported  by  the  decision  in  McGuire  v. 
Brown,22  where  an  owner  abandoned  an  old  ditch  and  used  the 
water  through  a  new  one,  which,  it  turned  out,  he  had  mistakenly 
built  on  another  man's  land  without  right.  This,  it  was  held, 
gave  no  right  to  use  the  water  in  the  new  ditch,  but  there  was 
not  necessarily  an  abandonment  of  the  right  to  use  it  in  the  old 
one.  However,  in  Griseza  v.  Terwilliger,23  it  is  said  that  a  parol 
sale  is  an  unequivocal  sign  of  relinquishment,  and  works  ipso 
facto  as  an  abandonment. 

The  truth  is,  that  the  rule  is  but  a  curious  survival  of  the  old 
pioneer  law  before  possessory  water-rights  on  the  public  domain 
came  to  be  (as  to-day  they  are)  treated  as  freehold  estates.  It 
properly  has  no  ground  for  existence  to-day.24 

while  he  may  have  irrigated  the  land,  22  106   Cal.   660,   39  Pac.   1069,   30 

has  abandoned  it  (Low  v.  Shaffer,  24  L.  E.  A.  384. 

Or.  239,  33  Pac.  678) ;  but  a  squatter  23  144  Cal.  456,  77  Pac.  1034,  cit- 

upon  public  lands  may,  even  "by  parol,  ing  Pomeroy  on  Riparian  Rights,  sec. 

transfer  his  claim  and  interest,  what-  89. 

ever  it  may  be  in  this  respect,  to  an-  24  In    Liggins    v.    Inge,    7    Bing. 

other,  and  the  rights  of  the  subsequent  692,  5  M.  &  P.   712,  the  law  of  ap- 

purchaser  and  of  his  successors  in  in-  propriation  of  water  was  regarded  as 

terest,  if  asserted  under  the  doctrine  the  law  of  England,  and  it  was  laid 

of  prior  appropriation,  relate  back  to  down  that  a  sale  by  an  appropriator 

the  date  of  the  first  appropriation  with  passed  no  title,  but  only  extinguished 

whom    there    may    be    a    privity    of  his  own  claim,  as  an  abandonment,  and 

estate."     Hough  v.  Porter.  51  Or.  318,  hence   was   not  within  the  statute   of 

95  Pac.  732,  98  Pac.  1083,  102  Pac.  frauds.     But    the    case   was    soon    re- 

728.  pudiated  both  as  to  its  theory  of  Eng- 


600   (3d  etL)    Pt.  III.     THE  LAW  OF  PRIOR  APPROPRIATION.          §  556 
(3d  ed.) 

§  556.  Parol  Sales  and  Licenses  in  Equity. — Water  and  ditch 
rights  being  real  property,  interests  therein  can  be  conveyed  or 
given  only  by  an  instrument  in  writing.  Parol  sales  or  licenses 
are  expressly  made  void  or  invalid  by  the  statute  of  frauds. 
But  the  requirement  of  a  writing  is  at  best  a  mere  formality 
which,  in  practical  affairs,  men  often  disregard,  and  proceed  in 
unwritten  transactions  until  so  involved  therein  that  to  permit 
the  statute  alone  to  control  would  work  a  clear  fraud  on  one  by 
allowing  the  other  to  be  enriched  by  what  he  received  under  the 
bargain,  while  escaping  from  his  own  obligation  under  cover  of 
the  statute.  To  prevent  the  statute  working  such  frauds,  when 
passed  to  prevent  fraud,  courts  of  equity  hold  the  defaulting 
party  as  a  constructive  trustee,  and  grant  specific  performance 
of  parol  contracts  and  sales  regarding  water-rights  where  one 
party  has  partly  performed,  taken  possession,  made  improve-v 
ments,  incurred  expense  and  expended  his  energy  on  the  faith  of 
the  parol  understanding.25  One  recent  case1  says:  "Water-rights 
are  classed  as  real  property,  and  hence,  under  the  general  rule, 
any  agreement  relating  thereto  must  be  in  writing.2  But  in,  the 
case  at  bar  the  agreement  was  acted  upon  by  placing  a  measur- 
ing-box in  the  stream,  and  actually  dividing  the  water,  and  by 

lish  water  law  and  its  theory  of  parol  that  case  to  have  been  too  uncertain 

sale,  and  has  come  in  this  latter  regard  to    enforce.)      See,    also,    cases    below 

to  be  upheld  only  on  the  principles  of  cited  regarding  parol  licenses, 

equity,  in  the  next  section,  regarding  Colorado. — Yunker     v.     Nichols,     1 

executed  parol  license.  Colo.    551,    8    Morr.    Min.    Rep.    64; 

25  California,.— Flickinger  v.   Shaw,  Schilling   v.    Rominger,   4   Colo.    104; 

87  Cal.  126,  22  Am.  St.  Rep.  234,  25  McLure  v.  Koen,  25  Colo.  284,  53  Pac. 

Pac.  268,   11  L.  R.  A.  134;   Blanken-  1053 ;  Parke  v.  Parke  (1909),  45  Colo, 

ship  v.  Whaley,  124  Cal.  300,  57  Pac.  347,    101    pac.    403,   at    406,    saying: 

79;    Churchill  v.  Russell    (1905),   148  "Oral  agreements  concerning  priorities 

Cal.  1,  82  Pac.  440 ;  Dorris  v.  Sullivan,  an(j  titie  to  water-rights,  followed  with 

90    Cal.    279,    27    Pac.    216;    Bree   v.  jts  change  of  possession  and  applica- 

Wheeler,  4  Cal.  App.  109,  87  Pac.  255;  tion  by  the  claimant,  have  heretofore 

Bashore  v.  Mooney,  4  Cal.  App.  276,  been   held   valid   by   this   court;    also 

87  Pac.  553    (citing,  also,  Griseza  v.  that  part  performance  will  take  it  out 

Terwilliger,  144  Cal.  462,  77  Pac.  1034,  Of  the  statute  of  frauds,  and  equity 

and  Bates  v.  Babcock,  95  Cal.  486,  29  wju  enforce  the  right  thus  acquired." 

Am    St    Rep    133,  30  Pac.  605,  16  L.  On*  on.-Coffman  v.  Robbins,  8  Or. 

R.  A.  745.     A  parol  contract  to  convey  27g    g-  Morr_  Min   R        131     Co'mbs  y_ 

and  with  an  easement  over  remaining  gla^        19  Or  99   26  Pac.  6'61    Wattg 

land   for  a  pipe-line,  being   executed,  v   gpen^er   51  Or.  262,  94  Pac!  39. 
gives    the    grantee    an    equitable   title 

'  to    the   easement.     Rubio    Canyon   W.  1  Bree  v.  Wheeler,  4  Cal.  App.  109, 

Co.  v.  Everett  (1908),  154  Cal.  29,  96  87  Pac.   255. 

Pac.  811.     (But  see  German  etc.  Soc.  2  Citing  Code  Civ.  Proc.,  sees.  1971, 

v.  McLellan   (1908),  154  Cal.  710,  99  1973;   Hayes  v.  Fine,  91  Cal.  398,  27 

Pac.   194,   holding   the   parol   reserva-  Pac.  772;  Blankenship  v.  Whaley,  124 

tion  of  a  spring  on  the  sale  of  land  in  Cal.  304,  57  Pac.  79. 


§556  Ch.  24.     CONTRACTS— CONVEYANCES.          (3d  ed.)  601 

mutual  consent  of  the  parties  each  was  placed  in  possession  of 
one-half  thereof.  To  complete  the  transfer  nothing  remained  to 
be  done  except  the  execution  of  a  conveyance,  conveying  a  proper 
proportion  of  the  water  to  each.  Each  had  a  perfect  equity, 
entitling  him  to  a  deed  from  the  other.  When  such  is  the  case, 
a  court  of  equity,  in  accordance  with  its  familiar  rules,  consider- 
ing that  as  done  which  ought  to  be  done,  will  protect  the  right 
obtained  as  readily  and  as  fully  as  a  legal  title."  And  it  is  held 
in  another  case  that  the  parol  grantee  can  enjoin  a  stranger  from 
diverting  the  water.3 

Upon  the  same  principle,  parol  licenses  to  take  water  or  build 
a  ditch,  being  intended  to  be  permanent,  become  irrevocable  in 
equity  after  the  licensee  has  acted  upon  the  same,  built  his  ditch 
or  other  works,  and  incurred  large  expense.4  For  example,  "Go 
ahead.  The  more  ditches  you  build,  the  better  it  will  suit  me," 
was  held,  when  acted  upon,  to  be  irrevocable.5  When  thus  irrev- 
ocable, it  is  not  affected  by  subsequent  conveyance  by  the  licensor 
to  a  third  person  who  has  notice,  express  or  implied,  of  the  exist- 
ence of  the  irrevocable  right.6  At  the  same  time,  a  parol  license 
is  revocable  until  thus  executed,  and  is  revoked  when  the  licensor 
obstructs  it7  or  by  the  licensor's  death,8  or  by  a  conveyance  by 

3  Watts  v.  Spencer,  51  Or.  262,  94  amounts  to  a  consent  and  parol  license 
Pac.  39.  which    is    irrevocable    when    executed. 

4  Stoner  v.  Zucker,  148  Cal.  516,  113  The  court  said:  "The  principal  conten- 
Am.  St.  Rep.  301,  83  Pac.  808,  7  Ann.  tion    upon   appeal   is   that   this   court 
Cas.    704;    Miller    v.    Kern    etc.    Co.  should  recede  from  the  view  which  is 
(1909),   154   Cal.    785,   99   Pae.    179;  adopted    and    expressed    in    Stoner    v. 
Davis  v.  Martin,  157  Cal.  657,  108  Pac.  Zucker,  148  Cal.  516,  113  Am.  St.  Rep. 
866;     Coventon    v.    Seufert,    23    Or.  301,    83   Pac.    808,    7   Ann.    Cas.    704, 
548,    32    Pac.    508 ;    Maple    etc.    Co.  and   should   adopt   the   contrary   view 
v.  Marshall,  27  Utah,  215,  75  Pac.  369 ;  that    a    parol    license,    regardless    of 
Jensen  v.  Hunter  (Cal.),  41  Pac.  14;  its  nature,  is  always  revocable  at  the 
Lavery  v.  Arnold,  36  Or.  84,  57  Pac.  will  of  the  licensor.     This  question  wag 
906,   58   Pac.   524,   citing   cases;    Me-  duly  considered  in   Stoner  v.   Zucker, 
Phee  v.  Kelsey,  44  Or.   193,   74  Pac.  supra,   the   conflict   in   authority   was 
401 ;    75   Pac.    713;    Shaw   v.   Proffitt  recognized,   and   the   conclusion   there 
(Or.  1910),  110  Pac.  1092;  Munsch  v.  expressed    deliberately    adopted.     We 
Stelter,   109   Minn.   403,   134  Am.   St.  perceive  no  reason  for  receding  from 
Rep.  785,  124  N.  W.  14;  Arterburn  v.  that  conclusion."     Miller  v.  Kern  Co. 
Beard,  86  Neb.  733,  126  N.  W.  379.  (1909),  154  Cal.  785,  99  Pac.   179. 

In  one  case  it  was  held  that  where  a  5  Shaw   v.   Proffit    (Or.),    110   Pac. 

man's  agents  accompany  another  and  1092,  holding  it  to  become  "a  vested 

his  employees  to  a   reservoir  and  co-  easement." 

operate  and  assist  in  laying  out  pipe-  6  Cases  supra. 

lines    and    surveying    and    locating    a  7  Prentice  v.  McKay,  38  Mont.  114, 

canal   for   conducting   water   over  the  98  Pac.   1081,  citing  Great  Falls  etc. 

former's  land,  and  the  latter  conducts  Co.    v.    Great    Northern    Ry.    Co.,    21 

the    work    openly,    with    the    former's  Mont.  487,  54  Pac.  963. 

knowledge,  the  former  standing  by  and  8  Jensen  v.  Hunter  (Cal.),  41  Pac. 

making  no  objection,  but  encouraging  17. 
the      latter  - — the      former's      conduct 


602   (3ded.)    Pt.  III.     THE   LAW   OF  PRIOR  APPROPRIATION.       §557 

the  licensor  to  some  other  party,9  nor  will  it,  even  when  executed, 
be  irrevocable  if  not  intended  so,  but  only  intended  to  be  tempo- 
rary and  revocable.10 

These  cases  enforcing  executed  parol  licenses  are  based  upon 
the  same  principles  as  specific  performance,  though  sometimes 
called  " estoppel."11 

(3d  ed.) 

§  557.  Conclusion. — The  freedom  of  disposition  of  appropria- 
tions shows  the  possessory  origin  of  the  law  of  appropriation;  a 
branch  of  the  law  of  possessory  rights  on  the  public  domain. 
Possession  of  the  stream  was  the  foundation  of  the  right.  Actual 
diversion  (the  taking  of  possession)  created  the  right;  capacity 
of  ditch  (the  amount  in  possession)  measured  the  right;  injunc- 
tions were  granted  without  present  damage ;  the  appropriation 
was  independent  of  ownership  or  possession  of  any  land  and 
independent  of  the  place  of  use  or  mode  of  enjoyment  and  change 
did  not  forfeit  priority;  and,  as  to  contracts  or  sales,  "it  could 
be  transferred  like  other  property"  as  a  separate,  individual 
thing.  Much  of  this  is  still  law  to-day.12 

But  the  very  late  "water  code"  legislation,  and  the  tendency 
of  late  court  decisions,  is,  as  elsewhere  considered,13  to  treat  the 
right  as  one  to  a  specific  initial  use  (such  as  the  requirements  of  a 
specific  piece  of  land)  rather  than  to  possession  of  a  stream  or  any 
specific  quantity  or  flow  of  water.  Hence  the  innovations  intro- 
duced by  the  statutes  above  referred  to;  and  consequently,  also, 
the  reader  must  be  prepared,  as  time  goes  on,  to  find  the  decisions 
departing  from  the  (at  present)  established  rules  presented  in 
this  chapter. 

9  Mclntyre  v.  Harty,  236  111.   629,  pellant,  and  that  respondents  refused 
86  N.  E.  581,  though  this  case  seems  to  either  to  sell  or  convey  a  permanent 
lay  down  the  same  revocability   even  right.     Such  right  or  license  was  rev- 
after  the  license  was  acted  upon.  ocable  at  the  will  of  respondents,  and 

10  Lanham    v.    Wenatchee    Co.,    48  could   not   be   enforced   thereafter   by 
Wash.  337,  93  Pac.  522;  Mclntyre  v.  the  appellant."    Weidensteiner  v.  Mally 
Harty,   236   111.    629,   86   N.   E.   581;  (1909),   55  Wash.  79,   104   Pac.   143, 
Davis   v.    Martin,    157    Cal.    657,    108  citing  Hathaway  v.  Yakima  Water  etc. 
Pac.   866;   Lewis  v.   Patton    (Mont.),  Co.,   14  Wash.  469,   53  Am.   St.  Rep. 
113  Pac.   745.     See,  also,  supra,  sec.  874,  44  Pac.  869;  Prentice  v.  McKay, 
56,  and  infra,  see.  593.  38  Mont.  114,  98  Pac.  1081. 

"The  evidence  in  the  case,  however,  n  As   to   which,  see   further  infra, 

is  clear  that  the  right  to  construct  the  sees.  593,  655. 

ditch  and  use  the  water  from  Grouse  12  See    cross-references    supra,    sec. 

Creek   was    a    mere    permissive    right,  139. 

granted  by  the  respondents  to  the  ap-  13  Supra,  sec.  139. 

§§  558-565.     (Blank  numbers.) 


§566  Ch.  25.     LOSS  OF  EIGHT.  (3d  ed.)  603 


CHAPTER  25. 
LOSS  OF  RIGHT. 

A.     ABANDONMENT. 

§  566.  Introductory. 

§  567.  Abandonment  is  voluntary  and  a  question  of  fact. 

§  568.  Same  (examples). 

§  569.  Nonuser  merely  evidence  of  intention  to  abandon. 

§  570.  Same. 

§  571.  Discharged  waste  and  recapture. 

§  572.  Parol  sale  or  faulty  deed. 

§  573.  Failure  of  diligence  in  construction  work. 

B.     FORFEITURE. 

§  574.  Failure  to  comply  with  statute  in  making  an  appropriation. 

§  575.  Smith  v.  Hawkins. 

§  576.  Forfeiture  under  statutes. 

§  577.  Transitionary  state  of  the  law. 

§  578.  Conclusions  regarding  abandonment  and  forfeiture. 

C.     ADVERSE  USE  OR  PRESCRIPTION. 

§  579.  General. 

§  580.  Effect  of  adverse  use  or  prescription. 

§  581.  Extent. 

§  582.  Essentials. 

§  583.  Continuous. 

§  584.  Exclusive;  uninterrupted. 

§  585.  Open;  notorious. 

§  586.  Claim  of  right;  color  of  title. 

§  587.  Hostile  to  owner;  permission. 

§  588.  Invasion  of  right. 

§  589.  Chance  to  prevent. 

§  590.  Payment  of  taxes. 

§  591.  Against  the  United  States  or  the  State. 

§  592.  Conclusion. 

D.     ESTOPPEL. 

§  593.     Elements  of  estoppel  in  pats. 
§  594.     Estoppel  by  silence. 
§  595.     Same. 
§§  596-603.     (Blank  numbers.) 

(3d  ed.) 

.  §  566.     Water-rights  of  appropriation  may,  it  is  true,  continue 
indefinitely,  but  they  may  likewise  come  to  an  end  in  several 


604  (3ded.)    Pt.  III.     THE   LAW   OF  PEIOE  APPROPRIATION.       §567 

ways,  viz.,  by  abandonment,  forfeiture,  adverse  use,  estoppel  or 
eminent  domain  proceedings. 


A.     ABANDONMENT. 
(3d  ed.) 

§  567.  Abandonment  is  Voluntary  and  a  Question  of  Fact. — 
As  the  law  of  appropriation  arose  as  a  branch  of  the  law  of  pos- 
sessory rights  on  the  public  domain,  the  right,  upon  its  original 
basis,  lasts  during  the  retention  of  possession  of  the  stream  with 
a  Itona  fide  intention  not  to  relinquish  it.  The  retention  of  pos- 
session with  a  bona  fide  intention  is  a  condition  upon  retention 
of  the  right ;  and  the  relinquishment  of  possession  with  intent  to 
abandon  constitutes  an  abandonment  of  the  right. 

To  constitute  abandonment,  properly  speaking,  there  must  be  a 
concurrence  of  act  and  intent,  the  relinquishment  of  possession, 
and  the  intent  not  to  resume  it  for  a  beneficial  use,  so  that  aban- 
donment is  always  voluntary,  and  a  question  of  fact.1 


1  Arizona. — Gould  v.  Marieopa  etc. 
Co.,  8  Ariz.  429,  76  Pac.  598;  Marlar 
v.  Maricopa  etc.  Co.  (Ariz.),  76  Pac. 
1125;  Salt  River  etc.  Co.  v.  Slosser 
(Ariz.),  76  Pac.  1125;  Brockman  v. 
Grand  Canal  Co.,  8  Ariz.  451,  76  Pac. 
602;  Patterson  v.  Ryan  (Ariz.),  108 
Pac.  1118. 

California,. — Wood  v.  Etiwanda  W. 
Co.,  147  Gal.  233,  81  Pac.  512;  Utt 
v.  Frey,  106  Cal.  397,  39  Pac.  807, 
quoted  infra;  Integral  Quicksilver  M. 
Co.  Vv  Altoona  M.  Co.,  75  Fed.  380,  21 
C.  C.  A.  409;  Hewitt  v.  Story,  64  Fed. 
510,  12  C.  C.  A.  250,  30  L.  R.  A.  265, 
and  cases  infra. 

Colorado. — People  v.  Farmers'  etc. 
Co.,  25  Colo.  202,  54  Pac.  626; 
Platte  etc.  Co.  v.  Central  etc.  Co., 
32  Colo.  102,  75  Pac.  391;  Greer 
v.  Heiser,  16  Colo.  306,  26  Pac.  770; 
Beaver  Brook  Co.  v.  St.  Vrain  Co., 
6  Colo.  App.  130,  40  Pac.  1066;  New 
Mercer  Co.  v.  Armstrong,  21  Colo.  357, 
40  Pac.  989 ;  Putman  v.  Curtis,  7  Colo. 
App.  437,  43  Pac.  1056;  Nichols  v. 
Lantz,  9  Colo.  App.  1.  47  Pac.  70; 
Hall  v.  Lincoln,  10  Colo.  App.  360,  50 
Pac.  1047 ;  North  Am.  Exploration  Co. 
v.  Adams  (Colo.),  104  Fed.  404,  45  C. 
C.  A.  185;  Lower  Latham  D.  Co.  v. 
Louden  Irr.  Co.,  27  Colo.  267,  83  Am. 
St.  Rep.  80,  60  Pac.  629;  Hector  M: 
Co.  v.  Valley  View  M.  Co.,  28  Colo. 
315,  64  Pac.  205;  Butterfield  v. 
O'Neill,  19  Colo.  App.  7,  72  Pae. 


807;  Boulder  etc.  Co.  v.  Leggett  etc. 
Co.,  36  Colo.  455,  86  Pac.  101; 
Buckers  etc.  Co.  v.  Farmers'  etc.  Co., 
31  Colo.  62,  72  Pac.  49;  Cooper  v. 
Shannon,  36  Colo.  98,  118  Am.  St. 
•  Rep.  95,  85  Pac.  175;  O'Brien  v.  King, 
41  Colo.  487,  92  Pac.  945;  Alamosa  Co. 
v.  Nelson,  42  Colo.  140,  93  Pac.  1113. 

Idaho. — Welch  v.  Garrett,  5  Idaho, 
639,  51  Pac.  405,  19  Morr.  Min.  Rep. 
193;  Ada  Irr.  Co.  v.  Farmers'  Canal 
Co.,  5  Idaho,  793,  51  Pac.  990,  40  L. 
R.  A.  485;  Last  Chance  etc.  Co.  v. 
Bunker  Hill  etc.  Co.,  49  Fed.  430,  17 
Morr.  Min.  Rep.  449. 

Montana. — Norman  v.  Corbley,  32 
Mont.  195,  79  Pac.  1059;  Atchison  v. 
Peterson,  1  Mont.  561;  Barkley  v. 
Tieleke,  2  Mont.  61,  4  Morr.  Min.  Rep. 
666;  Kleinschmidt  v.  Greiser,  14  Mont. 
484,  43  Am.  St.  Rep.  652,  37  Pac.  5; 
Middle  Cr.  Co.  v.  Henry,  15  Mont.  558, 
39  Pac.  1054 ;  Goon  v.  Proctor,  27 
Mont.  526,  71  Pac.  1003;  Hays  v.  Buz- 
ard,  31  Mont.  74,  77  Pac.  423 ;  Gassert 
v.  Noyes,  18  Mont.  216,  44  Pac.  959, 
Featherman  v.  Hennessey  (Mont.), 
113  Pac.  751. 

Nebraska. — Farmers'  Irr.  Dist.  v. 
Frank,  72  Neb.  136,  100  N.  W.  286. 

Nevada. — Schutz  v.  Sweeney,  19  Nev. 
359,  3  Am.  St.  Rep.  888,  11  Pac.  253; 
Lobdell  v.  Hall,  3  Nev.  507. 

Oregon. — Dodge  v.  Marden,  7  Or. 
456,  1  Morr.  Min.  Rep.  63;  Moss  v. 
Rose,  27  Or.  595,  50  Am.  St.  Rep.  743, 


567 


Ch.  25.     LOSS   OF  EIGHT. 


(3ded.)  605 


It  has  been  said:  "To  constitute  an  abandonment  of  a  water- 
right,  there  must  be  a  concurrence  of  the  intention  to  abandon 
it  and  an  actual  failure  in  its  use."2  And  again:  "Abandonment, 
like  appropriation,  is  a  question  of  intent,  and  to  be  determined 
with  reference  to  the  conduct  of  the  parties.  The  intent  to  aban- 
don and  an  actual  relinquishment  must  concur,  for  courts  will 
not  lightly  decree  an  abandonment  of  a  property  so  valuable  as 
that  of  water  in  an  irrigated  region."3  In  another  case  it  is 
said:  "As  abandonment  is  a  matter  of  intention,  it  is  peculiarly 
within  the  province  of  a  trial  court  to  determine  from  all  the 
facts  and  circumstances  of  each  particular  case  whether  abandon- 
ment has  or  has  not  taken  place."4 

The  declarations  of  the  party  abandoning,  as  to  his  intention, 
are  evidence,5  and  he  may  himself  testify  as  to  what  his  intention 
was,  since  his  intention  is  in  issue,6  and  evidence  of  statements 
out  of  court  may  be  given  in  evidence.7  The  party  claiming 


41  Pac.  666;  Wimer  v.  Simmons,  27 
Or.  1,  50  Am.  St.  Rep.  685,  39  Pac.  6; 
Turner  v.  Cole,  31  Or.  154,  49  Pac. 
972;  Watts  v.  Spencer,  51  Or.  262,  94 
Pac.  39. 

South  Dakota. — Edgemont  Co.  v.  N. 
S.  Tubbs  Co.,  2  S.  D.  142,  115  N.  W. 
1130.  See  Stats.  1907,  c.  180. 

Utah.— Stalling  v.  Ferrin,  7  Utah, 
477,  27  Pac.  686;  Herriman  Irr.  Co. 
v.  Keel,  25  Utah,  96,  69  Pac.  719; 
Promontory  etc.  Co.  v.  Argile,  28  Utah, 
398,  79  Pac.  47. 

Washington. — Miller  v.  Wheeler 
(1909),  54  Wash.  429,  103  Pac.  641, 
23  L.  R.  A.,  N.  S.,  1065. 

2  Hough  v.  Porter,  51  Or.  318,  95 
Pac.  732,  98  Pac.  1083,  102  Pac.  728. 

3  Miller  v.  Wheeler,  54  Wash.  429, 
103  Pac.  641,  23  L.  R.  A.,  N.  S.,  1065. 

4  Cooper  v.   Shannon,   36   Colo.   98, 
118  Am.  St.  Rep.  95,  85  Pac.  175. 

Facts  held  to  show  abandonment. 
Brockman  v.  Grand  Canal  Co.,  8  Ariz. 
451,  76  Pac.  602;  Nichols  v.  Lantz,  9 
Colo.  App.  1,  47  Pac.  70;  Oviatt  v. 
Big  Four  Co.,  39  Or.  118,  65  Pac. 
811;  Lamborn  v.  Bell,  18  Colo.  346,  32 
Pac.  989,  20  L.  R.  A.  241;  Ruther- 
ford v.  Lucerne  Canal  &  P.  Co.,  12 
Wyo.  299,  75  Pac.  445;  Ophir  Min- 
ing Co.  v.  Carpenter,  4  Nev.  534,  97 
Am.  Dec.  550,  4  Morr.  Mm.  Rep.  640; 


Kirman  v.  Hunnewill,  93  Cal.  519, 
29  Pac.  124;  Dorr  v.  Hammond,  7 
Colo.  79,  1  Pac.  693;  Smith  v.  Green, 
109  Cal.  228,  41  Pac.  1022;  Platte 
Water  Co.  v.  Northern  etc.  Co.,  12 
Colo.  525,  21  Pac.  711. 

Facts  held  not  to  show  abandon- 
ment. Utt  v.  Frey,  106  Cal.  392,  39 
Pac.  807;  Hays  v.  Buzzard,  31  Mont. 
74,  77  Pac.  423;  Greer  v.  Heiser,  16 
Colo.  396,  26  Pac.  770;  Putnam  v. 
Curtis,  7  Colo.  App.  437,  43  Pac.  1056 ; 
Welch  v.  Garrett,  5  Idaho,  639,  51 
Pac.  405,  19  Morr.  Min.  Rep.  193; 
Promontory  Co.  v.  Argile,  28  Utah, 
398,  79  Pac.  47;  Farmers'  etc.  Co.  v. 
New  Hampshire  etc.  Co.,  40  Colo.  467, 
92  Pac.  290;  Sullivan  v.  Jones  (Ariz.), 
108  Pac.  476  (three  years'  nonuser). 

5  Boulder   etc.   Co.   v.   Leggett   etc. 
Co.,  36  Colo.  455,  86  Pac.  101;  Dodge 
v.   Marden,   7   Or.  457,   1   Morr.   Min. 
Rep.  63;   Central  Trust  Co.  v.  Culver, 
35  Colo.  93,  83  Pac.  1065. 

6  Boulder  etc.   Co.   v.  Leggett   etc. 
Co.,  36  Colo.  455,- 86  Pac.  101,  holding 
that  on  an  issue  of  defendant's  aban- 
donment of  certain  water-rights  con- 
ferred   by    a    decree,    evidence    as    to 
whether   defendant's   officers   had  any 
intention    or   purpose    of    abandoning 
the  rights  so  conferred  was  admissible. 

7  Ibid. ;  Central  etc.  Co.  v.  Culver,  35 
Colo.  93,  83  Pac.  1064. 


606  (3ded.)    Pt.  III.     THE  LAW   OF  PEIOR  APPEOPEIATION.       §567 

there  is  an  abandonment  has  the  burden  of  proof,  which  must  be 
clear  and  definite  to  a  preponderance  of  evidence.8 

The  rule  of  abandonment  applies  as  well  to  rights  or  priorities 
decreed  in  proceedings  adjudicating  rights  as  to  rights  not  so 
decreed,9  so  far  as  the  abandonment  rests  on  new  matter  subse- 
quent to  the  decree.  But  the  decree  is  res  adjudicata  upon  any 
abandonment  prior  thereto.10  The  question  of  abandonment  can- 
not be  determined  in  a  suit  under  the  special  Colorado  procedure 
for  changing  the  point  of  diversion.11 

An  abandonment  of  a  ditch,  however,  does  not  necessarily  in- 
volve an  abandonment  of  the  water-right.12  The  distinction  be- 
tween the  water-right  and  the  ditch  or  other  appliances  must  be 
borne  in  mind.13 

It  has  been  held  that  abandonment  is  not  complete  until  an- 
other relocates,  so  that  a  resumption  of  use  may  be  made  at  any 
time  before  others  intervene,14  though  not  after  others  intervene.15 

Abandonment  may  be  of  part,  as  well  as  the  whole,  of  an  ap- 
propriation.16 

Abandonment  must  be  made  by  the  owner,  without  being 
pressed  by  any  duty,  necessity,  or  utility  to  himself,  but  simply 
because  he  desires  no  longer  to  possess  the  thing,  and  further,  it 
must  be  made  without  any  desire  that  any  other  person  shall 

8  Hall  v.  Lincoln,  10  Colo.  App.  360,  12  New   Mercer  Ditch   Co.   v.   Arm- 
50  Pac.  1047;   Beaver  etc.  Co.  v.  St.  strong,    21    Colo.    357,    40    Pac.    989; 
Vrain  etc.  Co.,  6  Colo.  App.   130,  40  Kleinschmidt    v.     Greiser,     14     Mont. 
Pac.   1066;    Platte  Valley  Irr.   Co.  v.  484,  43  Am.  St.  Rep.  652,  37  Pac.  5; 
Central   Trust   Co.,   32    Colo.    102,   75  Wood  v.  Etiwanda  Water  Co.,  147  Cal. 
Pac.   391;    Putnam  v.  Curtis,   7  Colo.  233,  81  Pac.  512;  McGuire  v.  Brown, 
App.   437,   43   Pac.   1056;    O'Brien  v.  106  Cal.  660,  39  Pac.  1060,  30  L.  E.  A. 
King,  41  Colo.  487,  92  Pac.  945;  Ala-  384;    Gould   v.    Maricopa    etc.   Co.,   8 
mosa  Co.  v.  Nelson,  42  Colo.  140,  93  Ariz.    429,    76    Pac.    598;    Marlar   v. 
Pac.  1113;  Miller  v.  Wheeler  (1909),  Maricopa    etc.    Co.    (Ariz.),    76    Pac. 
54  Wash.  429,  103  Pac.  641,  23  L.  E.  1125;    Salt   River   etc.   Co.   v.    Slosser 
A.,  N.  S.,  1065;  McFarland  v.  Alaska  (Ariz.),  76  Pac.  1125;  Salt  Eiver  etc. 
etc.  Co.,  3  Alaska,  308.  Co.   v.   Van   Fossen    (Ariz.),   76   Pac. 

9  New    Mercer    etc.    Co.    v.    Arm-  1125. 

strong,    21    Colo.    357,    40    Pac.    989;  13  Supra,.sec.  456. 

Boulder  etc    Co    v    Leggett  etc    Co  14  Beaver    fe    Co        g     y    . 

36  Colo    455,  86  Pac    101;   Alamosa      c       6  Cok)    A        130    4Q  p&c    1Q66 

CO.    V.    .NelSOn.    42     COlO.     140.     yd     ±*ac.          m       i   .,      ,      T-  a    -\r        L     oor     in    -D 

1121;    Dracha   v.    Isola    (Colo.),    109  ^cker  v"  Jones>  8  Mont  225'  19  Pac' 

Pac   748                               •  O'-i. 

10  O'Brien  v.  King,  41  Colo.  487,  92  15  Eutherford    etc.    Co.    v.    Lucerne 
Pac   945  etc.  Co.,  12  Wyo.  299,  75  Pac.  445.    Cf. 

11  Wadsworth  D.  Co.  v.  Brown,  39      Lindley  on  Mines,  sec.  . 

Colo.  57,  88  Pac.  1060;  Lower  Latham  i«  Alamosa  Co.  v.  Nelson,  42  Colo, 

etc.  Co.  v.  Bijou  etc.  Co.,  41  Colo.  212,      140,  93  Pac.  1113. 
93  Pac.  483. 


§563  Ch.  25.     LOSS  OF  EIGHT.  (3d  ed.)  607 

acquire  the  same;  for,  if  it  were  made  for  a  consideration,  it 
would  be  a  sale  or  barter,  and  if  without  consideration,  but  with 
an  intention  that  some  other  person  should  become  the  possessor, 
it  would  be  a  gift.  Where  for  any  reason  a  transaction  fails  as  a 
sale,  it  cannot  be  converted  into  abandonment.17  There  is  no  such 
thing  as  abandonment  to  particular  persons,  or  for  a  considera- 
tion.18 The  right  once  abandoned,  it  cannot  be  revived  by  a  sale, 
and  the  sale  passes  nothing.19 

(3d  ed.) 

§  568.  Same. — A  sale  of  the  land  on  which  the  water  is  used, 
without  passing  the  water-right,  is  not  necessarily  an  abandon- 
ment of  the  water-right,20  nor  is  an  exhaustion  of  the  mine  for 
which  the  water  was  originally  used,21  nor  is  the  posting  of  a 
second  notice  of  appropriation  necessarily  an  abandonment  of 
rights  under  a  former  notice.22  These  are  all  evidence,  but  not 
conclusive.  On  the  other  hand,  an  abandonment  is  shown  where 
the  ditch  was  filled  in  and  sown  over  with  grass ;  ^  also  where  the 
land  irrigated  is  abandoned  and  nonuser  of  the  water  ensues  for 
a  long  time  1  after  which  a  later  acquisition  of  other  land  does 
not  revive  the  right  against  interveners.2  On  abandonment  of 
oil  locations,  the  right  to  the  wells  thereon  bored  for  oil  ceases 
also,  though  water  flows  from  them,  there  being  no  intent  to 
appropriate  the  water  to  a  beneficial  use.3  A  typical  case  of 
abandonment  is  where  the  appropriators'  purpose  has  been  ac- 
complished and  they  disperse,  the  mine  for  which  they  used  the 
water  being  worked  out,  the  ditches  decayed,  and  two  years  go 
by  without  doing  anything.4 

if  But  see  supra,  see.  555.    See  Kan.  20  Dodge  v.  Marden,  7  Or.  457,  1 

Gen.  Laws,  1909,  sec.  4436.  Morr.  Min.  Rep.  63. 

18  McLeran  v.  Benton,  43  Cal.  467;  21  Lowden  v.  Frey,  67  Cal. -474,  8 
Middle  Creek  Co.  v.  Henry,  15  Mont.  Pac.  31. 

556,  39  Pac.  1054;  Richardson  v.  Me-  22  Norman  v.  Corbley,  32  Mont.  195, 

Nulty,  24  Cal.  343,  1  Morr.  Min.  Rep.  79  Pac.  1059.    See  Hall  v.  Lincoln,  10 

11;  Stephens  v.  Mansfield,  11  Cal.  363;  Colo.  App.  360,  50  Pac.  1047,  examin. 

Watts  v.  Spencer,  51  Or.  262,  94  Pac.  ing  evidence  and  holding  no  abandon- 

39 ;  Norman  v.  Corbley,  32  Mont.  195,  ment. 

79  Pac.  1059 ;  Cache  La  Poudre  Co.  v.  23  Stalling  v.  Ferrin,  7  Utah,  477, 

Water   Supply   Co.,   27   Colo.   532,   62  27  Pac.  686. 

Pac.  420;  Last  Chance  Co.  v.  Bunker  l  Jackson  .v.    Indian    etc.    Co.,    18 

Hill  Co.,  49  Fed.  430.  Idaho,  513,  110  Pac.  251. 

19  Davis  v.  Gale,  32  Cal.  26,  91  Am.  2  Rutherford    etc.    Co.    v.    Lucerne 
Dec.    554,    4    Morr.    Min.    Rep.    604;  etc.  Co.,  12  Wyo.  299,  75  Pac.  445. 
Kirman  v.  Hunnewill,  93  Cal.  519,  29  3  De  Wolf  skill  v.  Smith,  5  Cal.  App. 
Pac.  124;   Colorado  etc.  Co.  v.  Rocky  T75,  89  Pac.  1001. 

Ford  etc.  Co.,  3  Colo.  App.  545,  34  4  Davis  v.  Gale,  32  Cal.  26.  91  Am. 
Pac.  580.  Dec.  604,  4  Morr.  Min.  Rep.  604.  For 


608  (3ded.)     Pt.  III.     THE   LAW   OF  PRIOR  APPROPRIATION.       §509 

Where  a  water-right  and  ditch  were  used  for  mining  in  the 
'  early  days  but  long  since  discontinued,  no  right  thereunder  can 
be  claimed  by  anyone  at  the  present  day.5  One  who  uses  the 
works  of  old-timers  with  whom  he  is  not  connected  can  claim 
nothing  through  such  old  appropriation;  nor  if  connected  with 
them  in  interest  where  their  rights  have  been  abandoned ;  nor,  in 
fact,  where  one  uses  even  recent  works  of  others,  with  whom  he 
is  not  connected,  can  he  claim  to  tack  on  to  the  priority  thereof. 
One  using  abandoned  works  must  stand  or  fall  on  his  own  acts, 
irrespective  of  the  use  in  such  works  by  a  former  owner.6  The 
rights  which  once  pertained  to  the  old  pioneer  mining  ditches 
have  mostly  been  lost  by  abandonment  long  ago,  though  evidence 
of  the  ditches  still  remains.7 

(3d  ed.) 

§  569.    Nonuser  is  Merely  Evidence  of  Intention  to  Abandon. — 

Under  the  doctrine  of  abandonment  in  its  possessory  origin,  non- 
user  was  merely  evidence  of  the  intention  that  the  relinquishment 
should  be  permanent.  The  right  being  viewed  as  one  to  possession 
of  the  flow,  nonuse  was  not  per  se  an  abandonment  but  only  evi- 
dence upon  the  question  of  intention.8  The  test  was  whether 
the  nonuser  was  for  an  unreasonable  time  under  the  .circum- 
stances, so  as  to  reasonably  indicate  a  relinquishment  of  possession 
and  an  intent  not  to  resume  it  for  a  beneficial  purpose ;  a  simple 
question  for  the  jury  similar  to  the  question  of  the  use  of  reason- 
able care  left  to  the  jury  in  the  law  of  negligence.  Where  the  non- 
user  is  for  an  unreasonable  time,  taking  all  the  surrounding  cir- 
cumstances into  consideration,  there  is  an  abandonment  of  the 
water-right;  on  the  other  hand,  if  it  appears  to  be  a  reasonable 

similar  cases  where  the  ditch,  etc.,  was  Where    a    squatter   on   public   land 

allowed   to   decay,   see   Dorr  v.   Ham-  abandons  both  water  and  land,  a  new 

tnond,  7  Colo.  79,  1  Pac.  693 ;  Sieber  v.  locator    of    the    land    is    a    new    ap- 

"Frink,  7  Colo.  148,  2  Pac.  901;  Goon  propriator,  and  cannot -take  the  prior- 

V.    Proctor,    27    Mont.    526,    71    Pac.  ity  of  the  original  one,  though  he  re- 

1003;  Noland  v.  Coon,  1  Alaska,  36;  opens   and   repairs   and   uses    the   old 

Ison  v.  Nelson  Min.  Co.,  47  Fed.  199.  ditches.     Head  v.  Hale,  38  Mont.  302, 

0                        ~  100   Pac.   222.      The  right  of  an  ap- 

/ion^er?^gr  7m  %?*?    eina  propriator  of  public  water  cannot  be 

(1909),  45  Colo.  401,  102  Pac.  108.  g^,  to  that  £  a  mere  squatter?  who 

8  Supra,  sees.  390,  555.  has   abandoned    his    land.      Hough    v. 

_  T       ,       _.  /-.nnnx    i  *«  n  i        Porter,   51   Or.   318,   95  Pac.   732,   98 

n  L™?  V0lmf,°nn  (l?°9)i  '       Pac.  1083,  102  Pac.  728. 

449     104    Pac.    449;    Sternberger    v.  8  gee    ^ross.references    supra     sec. 

Seaton  etc.  Co.,  supra.  -.on 


§569  Ch.  25.     LOSS  OF  EIGHT.  (3d  ed.)  609 

time,  there  is  not;  and  what  is  a  reasonable  time  is  a  question  of 
fact  for  the  jury.9 

If,  at  the  time  of  acquiring  the  right,  the  water-right  having 
been  newly  created  by  completion  of  the  preparatory  work,  there 
is  a  failure  for  an  unreasonable  time  under  the  circumstances  to 
apply  the  water  to  a  useful  purpose,  there  is  an  abandonment. 
No  definite  period  of  time  is  set  in  the  cases  generally.  The  non- 
user  is  not  conclusive,  but  a  question  depending  upon  (under  the 
facts  of  each  case)  what  is  an  unreasonable  delay;  that  is,  what 
nonuser  under  the  circumstances  reasonably  indicates  the  intent, 
in  that  case,  not  to  apply  the  water  to  a  useful  purpose.  This 
has  been  discussed  at  length  in  considering  "future  needs."10 

After  application  and  use  have  begun,  a  nonuser  thereafter 
owing  to  breakage  of  apparatus,  during  change  of  plans,  or  from 
other  cause,  is  not  necessarily  an  abandonment.  Here  again  the 
rule  of  the  cases  generally  is  that  no  definite  time  is  set.  The 
nonuser  being  for  a  reasonable  time  under  the  circumstances  of 
each  case,  there  is  no  abandonment.  Upon  the  facts  involved,  for 
example,  a  reasonable  time  has  lasted  for  one  year ; n  three 
years ; 12  eleven  years ; 13  fourteen  years.14  If  work  is  stopped 
because  the  stream  naturally  ceases  to  flow  (act  of  God)  or  be- 
cause of  tunneling  or  other  wrongful  act  of  another  person,  there 
is  no  abandonment.15  There  is  no  abandonment  where  the  non- 
use  was  during  the  administration  of  a  decedent  owner's  estate; ie 

9  Gross  v.  Jones  (1909),  85  Neb.  77,  "Absence      from      land      wrongfully 
127  N.  W.  681.     See,  also,  supra,  sec.  forced  does  not  work  a  forfeiture  of 
383   (diligence),  and  sec.  483   (future  any    interest    the    owner    may    have 
needs).  therein";      and     citing     Hoffman     v. 

10  Supra,  sec.  483.  Smyth,  47  Or.  573,  114  Am.  St.  Rep. 

11  Land    v.    Johnston    (1909),    156  938,  84  Pac.  80,  8  Ann.  Gas.  678). 
Cal.  449,  104  Pac.  449.  "The  last  seven  years  preceding  the 

12  Gassert  v.  Noyes,  18  Mont.  216,  trial  of  the  action  had  been  exception- 
44  Pac.  959;  Sullivan  v.  Jones  (Ariz.),  ally  'dry,'  and  during  them  the  flow  of 
108  Pac.  476.  water  had  ceased  earlier  in  the  spring 

13  North  Am.  Co.  v.  Adams  (Colo,),  than  in  former  years.     The  fact  that 
104   Fed.   404,    45    C.   C.    A.    185,    21  during  this  period  the  plaintiffs-  had 
Morr.  Min.  Rep.  65.  not  been  able  to  get  as  much  water  as 

l*  Wimer  v.  Simmons,  27  Or.  1,  50  theretofore  did  not  destroy  the  con- 
Am.  St.  Rep.  685,  39  Pac.  6.  tinuity  of  their  use,  nor  deprive  them 

15  Santa  Barbara  v.  Gould,  143  Cal.  of     the     right     to     use     the    amount 

421,  77  Pac.  151 ;  Putnam  v.  Curtis,  7  formerly    diverted   in   the   event   that 

Colo.  App.  437,  43  Pac.  1056;   Union  the  flow  of  the  stream  should  again 

Min.    Co.    v.    Dangberg,    81    Fed.    73  furnish    such    amount."     Huffner    v. 

(nonuser    during    litigation)  ;    Hough  Sawday,  153  Cal.  86,  94  Pac.  424. 

v.  Porter,  51  Or.  318,  95  Pac.  732,  98  16  Turner  v.   Cole,   31   Or.   154,  49 

Pac.    1083,    102    Pac.    728    (saying:  Pac.  971. 
Water  Rights — 39 


610  (3ded.)     Pt.  III.     THE  LAW  OF  PEIOR  APPROPRIATION.       §569 

or  during  temporary  shut-down  of  a  mine,17  or  during  bona  fide 
efforts  of  a  colonization  company  to  induce  immigration.18  What 
is  beneficial  user  has  already  been  discussed.19  But  if  the  non- 
user  is  unreasonably  continued,  here  again  it  will  be  evidence  (not 
conclusive,  but  taken  with  all  the  circumstances  of  the  case)  of 
an  intent  not  to  apply  the  water  to  a  useful  purpose,  and  an 
abandonment.20  During  the  temporary  cessation  of  use,  others 
may  use  the  water.21 

The  rule  concerning  nonuser  is  thus  summed  up  in  Utt  v. 
Frey : 22  "The  right  which  is  acquired  to  the  use  of  water  by  ap- 
propriation may  be  lost  by  abandonment.  To  abandon  such  right 
is  to  relinquish  possession  thereof  without  any  present  intention 
to  repossess.  To  constitute  such  abandonment  there  must  be  a 
concurrence  of  act  and  intent,  viz.,  the  act  of  leaving  the  premises 
or  property  vacant,  so  that  it  may  be  appropriated  by  the  next 
comer,  and  the  intention  of  not  returning.23  The  mere  intention 
to  abandon,  if  not  coupled  with  yielding  up  possession  or  a  cessa- 
tion of  user,  is  not  sufficient;  nor  will  the  nonuser  alone  without 
an  intention  to  abandon  be  held  to  amount  to  an  abandonment. 
Abandonment  is  a  question  of  fact  to  be  determined  by  a  jury  or 
the  court  sitting  as  such.  Yielding  up  possession  and  nonuser  is 
evidence  of  abandonment,  and  under  many  circumstances  sufficient 
to  warrant  the  deduction  of  the  ultimate  fact  of  abandonment. 
But  it  may  be  rebutted  by  any  evidence  which  shows  that,  not- 
withstanding such  nonuser  or  want  of  possession,  the  owner  did 
not  intend  to  abandon."  To  the  same  effect  it  is  said  in  another 
case24  concerning  an  appropriator  of  water:  "It  is  well  settled 
that  lapse  of  time  does  not  of  itself  constitute  an  abandonment, 
and  that  it  is  only  a  circumstance  for  the  jury  to  consider  in 
determining  whether  there  has  been  an  abandonment.  In  other 

17  Smith  v.  Hope  etc.  Co.,  18  Mont.          21  Supra,   sec.   481    et   seq.;    infra, 
4-32,    45    Pac.    632;     Featherman    v.       sec.  642. 

Hennessey     (Mont.),    113    Pac.    751  22  106  Cal.  397,  38  Pac.  807. 

(flume  broke  in  1888  and  mines  shut  23  Citing  Judson  v.  Malloy,  40  Cal. 

down  until  1894,  but  some  work  con-  299;    Bell   v.    Bed   Rock   etc.    Co.,   36 

tinued  more  or  less  in  the  meantime,  Cal.  214,  1  Morr.  Min.  Rep.  45;  Moon 

and  water  was  turned  into  the  ditch  v.  Rollins,  36  Cal.  333,  95  Am.  Dec. 

annually).  181;  St.  John  v.  Kidd,  26  Cal.  272,  4 

18  Nevada   etc.   Co.   v.   Bennett,   30  Morr.   Min.   Rep.   404;    Richardson  v. 
Or.  59,  60  Am.  St.  Rep.  777,  45  "Pac.  McNulty,   24  Cal.   345,   1  Morr.   Min. 
472.  Rep.  11;  Willson  v.  Cleveland,  30  Cal. 

19  Supra,  sees.  378,  481  et  seq.  192. 

20  Alamosa  Co.  v.  Nelson,  42  Colo.  24  Valcalda   v.    Silver    etc.    Co.,    86 
140,    93    Pac.    1113,    and   cases   cited  Fed.  90,  29   C.  C.  A,  591,   19   Morr. 
suvra.  Min.  Rep.  233. 


§570  Ch.  25.     LOSS  OF  RIGHT.  (3d  ed.)  611 

words,  the  question  is  one  of  intent.  Said  the  court  in  Waring  v. 
Crow,25  'The  intention  alone  governs.'1  In  Moon  v.  Rollins a 
it  was  held  that  one  in  possession  of  land  might  leave  it  for  a 
period  of  five  years  if  he  had  the  intention  of  returning,  and  that 
his  mere  failure  to  occupy  the  land  for  that  period  does  not 
neaessarily  constitute  an  abandonment."8 

In  a  word,  nonuser  is  not  per  se  an  abandonment.4  It  is,  so  far  as 
concerns  abandonment,  only  a  sign  that  you  "did  not  want  the 
water  any  more"  and  meant  to  give  it  up,  but  may  be  rebutted  by 
other  evidence  that  you  still  meant  to  keep  it,  unless  the  nonuse 
lasted  so  unreasonably  long  as  to  be  convincing  of  what  your  inten- 
tion had  been  when  you  stopped  use. 

(3d  ed.) 

§  570.  Same. — Like  the  rule  of  reasonable  care  in  the  law  of 
negligence,  the  rule  of  reasonable  time  here  is  indefinite.  In 
cases  where  there  is  no  evidence  of  importance  bearing  on  the 
surrounding  circumstances  it  would  be  difficult  for  the  jury  to 
say  whether  the  nonuser  was  for  an  unreasonable  time.  It  would 
be  enough  in  such  cases  to  say,  as  in  the  law  of  negligence,  that 
the  side  claiming  there  is  an  abandonment,  having  failed  to  con- 
vince the  jury  of  the  unreasonable  length  of  the  nonuser,  has 
failed  to  sustain  the  burden  of  proof,  and  failed  to  make  out  its 

25  11  Cal.  369,  5  Morr.  Min.  Rep.  8   Mont.   389,   21   Pac.    22,    16   Morr. 

204.  Min.    Rep.    1;    Gassert    v.    Noyes,    18 

1  Keane  v.  Cannovan,   21  Cal.  293,  Mont.    216,    44    Pac.    959;    Sloan    v. 
82  Am.  Dec.  738;   St.  John  v.  Kidd,  Glancy,    19    Mont.    70,    47    Pac.    334; 
26  Cal.  272,  4  Morr.  Min.  Rep.  454.  Smith  v.  Hope  Mining  Co.,  18  Mont. 

2  36  Cal.  337,  95  Am.  Dec.  181.  432,  45  Pac.  632 ;   Lobdell  v.  Hall,  3 

3  "An  easement  acquired  by  deed  is  Nev.   507 ;    Dodge   v.    Harden,    7    Or. 
not  lost  by  mere  nonuser."    Walker  v.  456,  1  Morr.  Min.  Rep.  63 ;  Turner  v. 
Lillingston,  137  Cal.  401,  70  Pac.  282.  Cole,  31  Or.  154,  49  Pac.  972;  Wimer 

4  Such  is  the  effect  of  most  of  the  v.  Simmons,  27  Or.  1,  50  Am.  St.  Rep. 
cases    in    the    first    section    of    this  685,    39    Pac.    6;     Edgemont    Co.    v. 
chapter.     We   happen   to   have   noted  Tubbs  Co.,  22  S.  D.   142,   115  N.  W. 
here  a  few  particularly:  1130;  Gill  v.  Malan,  29  Utah,  431,  82 

Utt  v.  Frey,  106  Cal.  397,  39  Pac.  Pac.  471;   Promontory  Co.  "v.   Argile, 

807;  Senior  v.  Anderson,  115  Cal.  496,  28  Utah,  398,  97  Pac.  47;   Sowles  v. 

47  Pac.  454;   Wood  v.  Etiwanda  Co.,  Minot,  82  Vt.  344,  73  Atl.  1025;   In- 

147  Cal.  233,  81  Pac.  512;   Sieber  v.  tegral    etc.    Co.    v.    Altoona    etc.    Co. 

Frink,  7  Colo.  149,  2  Pac.  901;  Dorr  (Cal.),  75  Fed.  379,  21  C.  C.  A.  409; 

v.  Hammond,  7  Colo.  79,  1  Pac.  693;  North  Am.  etc.  Co.  v.  Adams  (Colo.), 

People  v.  Farmers'  etc.  Co.,  25  Colo.  104   Fed.   404,    45   C.   C.   A.    185,    21 

202,  54  Pac.  626;  Welch  v.  Garrett,  5  Mori-.  Min.  Rep.  65;  Pomeroy  on  Ri- 

Idaho,  639,  51  Pac.  405,  19  Morr.  Min.  parian  Rights,   sec.   90;    Farnham   on 

Rep.   193;    Ada   etc.   Co.   v.   Farmers'  Waters,    sec.    691;    17    Am.    &    Eng. 

etc.  Co.,  5  Idaho,  793,  54  Pac.  990,  40  Ency.  of  Law,  517. 
L.  R.  A.  485;   McCauley  v.  McKeig, 


612   (3ded.)     Pt.  III.     THE  LAW  OF  PEIOR  APPROPRIATION.       §571 

case.5  An  attempt  has  been  made  to  cover  such  a  case  by  a  resort 
to  a  presumption  of  abandonment  from  nonuser.6  This  was  early 
rejected  in  California.7 

The  later  case  of  Smith  v.  Hawkins8  treats  the  matter  and 
avoids  the  difficulty  in  an  entirely  new  way;  viz.,  on  the  prin- 
ciples not  of  abandonment  at  all,  but  of  forfeiture.  This  case 
arbitrarily  selects  five  years  as  a  limit  of  nonuser  under  any  cir- 
cumstances. The  test  of  intent  is  then  rejected  and  the  principles 
of  forfeiture  acting  in  invitum  substituted.  Accepting  Smith 
v.  Hawkins  as  law,  the  rule,  as  stated  above,  that  nonuser  must 
be  considered  on  .the  principles  of  abandonment  under  test  of 
reasonableness  remains  unaffected,  so  long  as  five  years  have  not 
elapsed.  This  is  acknowledged  in  Smith  v.  Hawkins.  That  case 
merely  introduces  a  new  principle  governing  the  case  at  the  ex- 
piration of  the  five-year  period.  That  case  is  further  considered 
below.9 

The  introduction  of  the  principle  that  nonuser  after  a  definite 
period  of  time  operates  as  a  forfeiture  as  distinguished  from 
abandonment  was  hence  introduced  in  California  only  recently, 
and  by  a  decision  of  the  court,  not  by  legislation.  In  the  recent 
water  codes  of  the  arid  States  this  new  principle  usually  finds 
a  place  also,  as  considered  below.10 

(3d  ed.) 

§  571.    Discharged  Waste  and  Recapture. — Where  water  has 

been  severed  from  the  natural  stream  and  used  in  an  artificial 
structure  that  reduces  it  to  possession,  we  have  seen  that  it  has 
become  private  property,  and  is  dealt  with  by  the  law  as  a  corpus 
(as  distinguished  from  the  usufructuary  water-right  in  the 
natural  stream),  not  longer  subject  to  the  law  of  naturally  run- 
ning waters.  In  discharging  it  as  waste  from  the  ditches,  etc., 
the  question  is  not  one  of  abandonment  of  a  water-right,  but  of 
abandonment  of  specific  particles  of  water,  viz.,  the  very  particles 
that  are  discharged.  The  matter  is  of  importance  here,  but  has 

5  Beaver  etc.  Co.  v.  St.  Vrain  etc.  7  Partridge   v.   McKinney,    10   Cal. 
Co.,   6  Colo.  App.   130,  4  Pac.   1066;       181,  1  Morr.  Min.  Rep.  185. 

Platte  etc.  Co.  v.  Central  etc.  Co.,  32  8  no  Cal.  122,  42  Pac.  453,  affirmed 

Colo.  102,  75  Pac.  391.  in  120  Cal.  86,  52  Pac.  139,  19  Morr. 

6  Sieber   v.   Frink,    7    Colo.    148,   2  Min.  Rep.  243. 
Pac.   901;   Kinney  on  Irrigation,  see.  9  Sec.  575. 

257.  10  Infra,  sec.  576. 


§§572,573  Ch.  25.     LOSS  OF  EIGHT.  (3d  ed.)  613 

been  fully  treated  elsewhere,  and  the  reader  is  referred  to  a  pre- 
ceding chapter.11 

(3d  ed.) 

§  572.  Parol  Sale  or  Faulty  Deed. — Owing  to  the  insistence  in 
the  early  days  on  the  "trespasser"  side  of  possessory  rights  on 
the  public  domain,  a  conveyance  operated  on  the  principle  of 
surrender  and  admittance,  the  grantor  abandoning,  and  the 
grantee  receiving  his  right  because  of  his  newly  acquired  posses- 
sion. A  sale  of  a  possessory  right  on  public  land  was  an  un- 
equivocal sign  of  intent  to  relinquish  on  the  grantor's  part,  and 
hence  was  evidence  of  an  abandonment.12 

To-day,  possessory  rights  on  public  land  have  (under  the  "free 
development"  theory)  been  so  far  raised  into  the  dignity  of  real 
estate  13  that  a  sale  will,  if  in  writing  so  as  to  satisfy  the  statute 
of  frauds,  operate  as  a  transmission  of  title,  like  any  other  con- 
veyance, without  loss  of  priority.  But  still  the  old  view  has  some 
survival  where  the  sale  is  by  parol,  or  by  faulty  deed.  Such  a 
sale,  so  far  as  the  old  rule  has  survived,  is  not  inoperative.  It 
constitutes  an  abandonment  on  the  part  of  the  grantor,  and  the 
creation  of  a  new  right  in  the  grantee  as  a  new  appropriator  by 
actual  diversion.  Priority  is  lost.  Such  a  sale  does  not  operate 
as  an  abandonment,  however,  until  completed  by  putting  the 
grantee  in  possession.  The  mere  attempt  to  abandon  (or  an  un- 
successful attempt  at  a  parol  sale)  is  not  enough  without  the 
actual  relinquishment  of  possession.14 

The  rule  is,  however,  but  a  curious  survival  of  "ancient"  law 
before  possessory  rights  on  the  public  domain  came  to  be  recog- 
nized as  freehold  estates.  It  properly  has  no  ground  for  exist- 
ence to-day. 

(3d  ed.) 

§  573.  Failure  of  Diligence  in  Construction  Work. — An  ap- 
propriator seeking  the  benefit  of  the  doctrine  of  relation  loses  the 

11  Supra,  sec.  37  et  seq.  of   a  mining   ditch,   who    took   water 

12  Supra,   sec.    555;    Black   v.    Elk-  therefrom    for   irrigation,    by   leasing 
horn  Min.  Co.,  163  U.  S.  445,  16  Sup.  their  interest  therein,  abandoned  their 
Ct.  Rep.  1101,  41  L.  Ed.  221,  18  Morr.  irrigation  rights  in  the  ditch.     Davis 
Min.  Rep.  375.  v.   Chamberlain,   51   Or.   304,   98   Pac. 

13  Supra,  sees.   89  et  seq.,    283  et  154. 

seq.  Sale  is  evidence  of  an  abandonment. 

14  The  cases   are   cited,  supra,  sec.       Miller  v.   Wheeler    (1909),   54   Wash. 
655.  ^29.  103  Pac.  641,  23  L.  R.  A.,  N.  S., 

Compare  the  following:  The  owners      1065. 


614  (3ded.)     Pt.  III.     THE   LAW   OF  PBIOB   APPEOPBIATION.       §574 

benefit  of  that  doctrine  if  he  fails  to  use  diligence  in  building  his 
ditches  and  other  construction  work.  But  this  is  not  a  question 
of  abandonment.  It  is  matter  precedent  showing  that  no  right 
was  ever  obtained  against  the  other  claimant  who  has  performed 
the  requisite  formalities.15  The  two  principles  should  be  kept 
distinct.  That  this  does  not  rest  on  abandonment  is  shown  by  the 
rule  that  the  failure  of  diligence  is  immaterial  if  the  diversion  and 
use  are  nevertheless  completed  before  others  intervene.16  The 
matter  has  already  been  discussed  at  length.17 


B.     FOEFEITUBE. 
(3d  ed.) 

§  574.  Failure  to  Comply  With  Statute  in  Making1  an  Appro- 
priation.— Section  1419  of  the  Civil  Code  of  California  is  as  fol- 
lows: "Forfeiture.  A  failure  to  comply  with  such  rules  deprives 
the  claimants  of  the  right  to  the  use  of  the  water  as  against  a  sub- 
sequent claimant  who  complies  therewith. ' '  The  rules  mentioned 
are  those  governing  how  an  appropriation  is  to  be  made.17* 

We  have  already  discussed  the  cases  construing  this  section,  the 
result  being  seen  that  the  word  "claimants"  here  used  means  only 
those  who  are  engaged  in  the  preparatory  work,  and  seek  the 
benefit  of  the  doctrine  of  relation.  It  does  not  apply  to  an  ap- 
propriator  by  actual  diversion,18  and  the  section  ceases  to  be  ap- 
plicable after  an  appropriation  is  once  completed.  A  completed 
appropriation  is  hence  not  within  that  section,  and  so  there  is  not, 
by  this  section,  any  statutory  forfeiture  of  a  right  once  acquired, 
as  distinguished  from  abandonment,  in  those  States  where  this 
section  is  copied.19 

15  Nevada  etc.  Co.  v.  Kidd,  37  Cal.  the    purpose    of    such    appropriation 
282.  such  water  or  such  use   of  water,  is 

16  Wells  v.  Mantes,  99  Cal.  583,  34  hereby    declared    to    be    unappropri- 
Pac.  324.  ated." 

17  Supra,  sec.  364  et  seq.  18  De  Necochea  v.   Curtis,   80  Cal. 
I7a  Cal.  Stats.  1911,  e.  406,  devoted       397,  20  Pac.  563,  22  Pac.  198;  Wells 

to  power  uses,  contains  the  following  v.  Mantes,  99  Cal.  583,  34  Pac.  324; 

in  section  4:    "All  water  or  the  use  supra,  see.  364  et  seq. 
of   water  which   has   been  heretofore  19  "The  title  to  the  water  does  not 

appropriated  and  which  has  not  been  arise    as    we    have    intimated    before, 

put,   or  which   has   ceased   to   be   put  from  the  manifestation  of  a  purpose 

to  some  useful  or  beneficial  purpose,  to  take,  but  from  the  effectual  prosecu- 

or   which   is    not   now   in   process    of  tion  of   that  purpose.     This   prosecu- 

being    put    to    some    useful    or    bene-  tion,  therefore,  is  a  necessary  element 

ficial   purpose   with   due   diligence   in  of  a  title,  and  the  negation  of  this, 

proportion   to   the   magnitude   of   the  the  abandonment  of  the  purpose,  is  not 

work  necessary  properly  to  utilize  for  so  much  matter  in  avoidance  of  title, 


§  575  Ch.  25.     LOSS  OF  RIGHT.  (3d  ed.)  615 

Such,  also,  would  seem  to  be  the  case  under  those  water  codes 
which  (as  already  discussed)20  include  the  actual  application  of 
the  water  to  a  beneficial  use  within  a  stated  time  as  a  prerequisite 
to  the  issuance  of  a  license.  A  failure  to  make  such  application 
of  the  water  would  have  the  result  that  no  water-right  was  com- 
pleted, rather  than  that  a  completed  one  was  forfeited.21  It  is 
held  that  even  the  time  limit  so  specified  does  not  work  a  for- 
feiture unless  the  State  Engineer  or  the  statute  expressly  so  de- 
clares.22 

(3d  ed.) 

§  575.  Smith  v.  Hawkins. — If  there  is  any  such  thing  as  for- 
feiture of  a  water-right,  as  distinguished  from  abandonment,  it 
rests,  in  California,  on  Civil  Code,  section  1411,  as  construed  in 
Smith  v.  Hawkins.23  The  distinction  in  principle  would  be  a  loss 
of  the  right  in  invitum,  as  distinguished  from  a  voluntary  act. 
Where  mere  nonuser  and  no  other  important  evidence,  the  jury 
have  difficulty  in  saying  when  that  continuance  of  nonuser  is  un- 
reasonable. In  Smith  v.  Hawkins,  the  difficulty  is  cut  short  at 
the  end  of  five  years.  Nonuser  for  five  years  was  held  to  consti- 
tute a  loss  of  right  not  by  abandonment,  and  hence  irrespective  of 
intention,  but  by  forfeiture,  in  invitum.  This  relieves  the  jury  of 
a  difficult  question  of  fact,  but  it  is  an  entire  departure  from 
the  older  cases,  which  left  it  to  the  jury,  however  short  or  long 
the  time.  Smith  v.  Hawkins,  however,  is  such  a  clear  decision 
upon  the  point,  fixing  a  limit  of  five  years,  that,  though  open  to 
the  charge  of  judicial  legislation,24  it  is  likely  to  be  followed. 
The  material  part  of  the  opinion  in  Smith  v.  Hawkins  is  as  fol- 
lows : 

"Section  1411  of  the  Civil  Code  declares  that  the  appropriation 
must  be  for  some  useful  or  beneficial  purpose,  and  when  the 

as  it  is  matter  showing  that  no  title  the     United     States     district     court, 

was  ever  obtained."    Kimball  v.  Gear-  affirmed  in  120  Cal.  86,  52  Pac.  139, 

hart,   12   Cal.   27,   1  Morr.   Min.   Eep.  19    Morr.    Min.   Rep.   243.     See,   also, 

615.  Cal.  Stats.  1911,  c.  406,  sec.  4,  quoted 

20  Supra,  sec.  420.  in  the  preceding  section. 

21  See  supra,  sec.  395  et  seq.     Cf.  24  "it    would    be    contradicting    a 
Conley  v.  Dyer,  43  Colo.  22,  95  Pac.  fundamental   principle  of   human   na- 
304;  Drach  v.  Isola  (Colo.  1910),  109  ture  to  allow  no  effect  to  the  lapse  of 
Pac.  748.  time,  however  long,  yet  the  fixing  of 

22  Pool  v.  Utah  etc.  Co.  (Utah),  105  a  definite  time  usually  belongs  to  the 
Pac.  289.  legislature    rather    than    the    courts." 

23  HO  Cal.  122,  42  Pac.  453.     The  Holmes,  J.,  in  Missouri  v.  Illinois,  200 
opinion  of  the  court  was  delivered  by  U.  S.  520,  26  Sup.  Ct.  Rep.  268,  50 
Mr.  Justice  Van  Fleet,  now  judge  of  L.  Ed.  572. 


616  (3ded.)     Pt.  III.     THE  LAW  OF  PRIOR  APPROPRIATION.       §575 

appropriator  or  his  successor  in  interest  ceases  to  use  it  for  such 
a  purpose,  the  right  ceases.  This  section  deals  with  the  forfeiture 
of  a  right  by  nonuser  alone.  We  say  nonuser,  as  distinguished 
from  abandonment.  If  an  appropriator  has,  in  fact,  abandoned 
his  right,  it  would  matter  not  for  how  long  a  time  he  had  ceased 
to  use  the  water,  for  the  moment  that  the  abandonment  itself  was 
complete,  his  rights  would  cease  and  determine.  Upon  the  other 
hand,  he  may  have  leased  his  property,  and  paid  taxes  thereon, 
thus  negativing  the  idea  of  abandonment,  as  in  this  case,  and  yet 
may  have  failed  for  many  years  to  make  any  beneficial  use  of  the 
water  he  has  appropriated.  The  question  presented,  therefore,  is 
not  one  of  abandonment,  but  one  of  nonuser  merely,  and,  as  such, 
involves  a  construction  of  section  1411  of  the  Civil  Code.  That 
section,  as  has  been  said,  makes  a  cessation  of  use  by  the  appro- 
priator work  a  forfeiture  of  his  right,  and  the  question  for  deter- 
mination is,  'How  long  must  this  nonuser  continue  before  the 
right  lapses  ? ' K 

"Upon  this  point,  the  legislature  has' made  no  specific  declara- 
tion, but,  by  analogy,  we  hold  that  a  continuous  nonuser  for  five 
years  will  forfeit  his  right.  The  right  to  use  the  water  ceasing  at 
that  time,  the  rights  of  way  for  ditches  and  the  like,  which  are 
incidental  to  the  primary  right  of  use,  would  fall  also,  and  the 
servient  tenement  would  be  thus  relieved  from  the  servitude. 

"In  this  State  five  years  is  the  period  fixed  by  law  for  the  ripen- 
ing of  an  adverse  possession  into  prescriptive  title.  Five  years  is 
also  the  period  declared  by  law  after  which  a  prescriptive  right 
depending  upon  enjoyment  is  lost  for  nonuser;  and  for  analogous 
reasons  we  consider  it  to  be  a  just  and  proper  measure  of  time 
for  the  forfeiture  of  an  appropriator 's  right  for  a  failure  to  use 
the  water  for  a  beneficial  purpose. 

"Considering  the  necessity  of  water  in  the  industrial  affairs  of 
this  State,  it  would  be  a  most  mischievous  perpetuity  which 
would  allow  one  who  has  made  an  appropriation  of  a  stream  to 
retain  indefinitely,  as  against  other  appropriators,  a  right  to  the 
waters  therein,  while  failing  to  apply  the  same  to  some  useful 
or  beneficial  purpose.  Though  during  the  suspension  of  his  use, 
other  persons  might  temporarily  utilize  the  water  unapplied  by 
him,  yet  no  one  could  afford  to  make  disposition  for  the  employ- 

25  The  previous  cases  had  answered  the  jury  considered  unreasonable  un- 
this  question  by  saying  any  time  that  der  the  circumstances. 


§575  Ch.  25.     LOSS  OF  EIGHT.  (3d  ed.)  617 

ment  of  the  same  involving  labor  or  expense  of  any  considerable 
moment,  when  liable  to  be  deprived  of  the  element  at  the  pleasure 
of  the  appropriator,  and  after  the  lapse  of  any  period  of  time, 
however  great. 

"The  failure  of  plaintiffs  to  make  any  beneficial  use  of  the 
water  for  a  period  of  more  than  five  years  next  preceding  the 
commencement  of  the  action,  as  found  by  the  court,  results, 
from  what  has  been  said,  in  a  forfeiture  of  their  rights  as  appro- 
priators. " 

Upon  a  second  appeal  it  was  said:  "On  the  former  appeal,  it 
appeared  from  the  findings  that  no  beneficial  use  had  been  made 
of  the  water  appropriated  through  plaintiffs'  ditch  for  a  period 
of  five  years  next  before  the  commencement  of  the  action;  and 
it  was  held  that  the  right  of  plaintiffs  and  their  grantor  to  the 
use  of  the  water  being  one  acquired  by  appropriation,  a  failure 
for  that  period  to  devote  the  water  to  a  useful  or  beneficial 
purpose  operated,  under  section  1411  of  the  Civil  Code,  to  work 
a  forfeiture  of  plaintiffs'  rights  thereto  for  nonuser,  as  against 
a  subsequent  appropriator ' ' ;  and  it  was  further  held  on  the 
second  appeal,  "If  plaintiffs  could  forfeit  their  future  right  of 
appropriation  by  nonuser,  equally  will  they  be  held  to  forfeit  less 
than  the  whole  by  like  failure.  In  other  words,  the  necessary 
result  of  the  principles  declared  on  that  appeal  is  that,  no  matter 
how  great  in  extent  the  original  quantity  may  have  been,  an 
appropriator  can  hold,  as  against  one  subsequent  in  right,  only 
the  maximum  quantity  of  water  which  he  shall  have  devoted  to 
a  beneficial  use  at  some  time  within  the  period  by  which  his 
right  would  otherwise  be  barred  for  nonuser."1 

In  a  case  in  the  Federal  court 2  Smith  v.  Hawkins  was  con- 
sidered, but  as  less  than  five  years  of  nonuser  was  shown,  it  was 
held  unnecessary  to  pass  upon  that  case.  A  Nebraska  case 
seems  to  approve  Smith  v.  Hawkins.3  It  has  recently  been  cited 
with  approval,  though  not  actually  applied,  in. California.4 

The  statute  of  limitations  is  sometimes  referred  to  in  other 
cases  in  this  connection,  but  with  a  view  to  distinguishing  the 
principle  of  nonuser  alone  from  that  of  adverse  use;  that  is, 

1  Smith  v.  Hawkins,  120  Cal.  86,  52  4  Ladd  v.  Johnston  (1909),  156  Cal. 
Pac.  139,  19  Morr.  Min.  Rep.  243.  253,    104    Pae.    449,    nonuser    having 

2  Integral  etc.   Co.  v.   Altoona   etc.  lasted  only  one  year;  Leavitt  v.  Las- 
Co.,  75  Fed.  379,  21  C.  C.  A.  409.  sen  Irr.  Co.,  157  "Cal.  82,  106  Cal.  404. 

3  Farmers'    etc.    Co.    v.    Frank,    72 
Neb.  136,  100  N.  W.  286. 


618  (3ded.)     Pt.  III.     THE  LAW  OF  PRIOR  APPROPRIATION.       §576 

stating  that  the  limitation  period  applies  to  claims  of  adverse  use 
and  not  to  nonuser  at  all,  and  as  discouraging  claims  of  abandon- 
ment, rather  than  otherwise.  For  example:  "Such  a  right  can- 
not be  lost  by  nonuser  alone  short  of  the  period  of  the  limitation 
of  actions  to  recover  real  property."5  Instead  of  enforcing 
forfeiture,  such  an  expression  is  in  derogation  thereof. 

Smith  v.  Hawkins  is  pretty  sure  to  be  followed  in  California. 
It  will  place  a  limit  of  five  years  on  the  right  to  hold  water  for 
future  needs  in  irrigation,6  an  important  result  of  the  case.  In 
other  States,  nonuser  of  water  held  for  future  needs  has  been 
allowed  to  go  on  for  ten  years  or  more,  without  loss  of  right,7 
in  the  absence  of  statute  specifying  a  shorter  time  in  which  the 
actual  use  must  be  accomplished. 

(3d  ed.) 

§  576.  Forfeiture  Under  Statutes. — In  Oregon  an  early  statute 
provided  that  when  a  ditch  is  abandoned  and  thereafter  for  one 
year  the  claimant  shall  cease  to  exercise  acts  of  ownership  over 
the  same,  he  shall  be  deemed  to  have  lost  all  claim  thereto.8  In 
Dodge  v.  Harden  9  it  was  found  that  there  was  no  intention  to 
abandon,  and  it  was  held  that  the  year  of  nonuser  was  not  alone 
enough;  that  the  statute  does  not  dispense  with  intent;  but,  on 
the  contrary,  preserves  the  right  for  a  year  after  that,  granting, 
so  to  speak,  an  extra  year  of  grace  to  the  abandoning  appro- 
priator,  and  is  hence  diametrically  opposed  to  Smith  v.  Hawkins 
instead  of  supporting  it.  The  court  said  it  would  be  necessary 
in  showing  loss  of  right  "by  this  statute  to  show  first  that  he 
had  given  up  all  claims  to  it,  which  would  be  an  abandonment, 
and  then  that  after  such  abandonment  he  had  ceased  for  one 

5  People   v.    Farmers'    etc.    Co.,    25  corporation,  being  the  owner  or  propri- 
Colo.  202,  54  Pac.  626;   Alamosa  Co.  etor  of  any  ditch,  flume  or  water-right, 
v.  Nelson,  42  Colo.  140,  93  Pac.  1112.  have  or  shall  abandon  the  same,  and 
The   same   words   are   used   in   Dodge  who    shall    for    one    year    thereafter 
v.  Harden,  7  Or.  456,  1  Morr.  Min.  cease  to  exercise  ownership  over  said 
Rep.  63,  from  which  this  expression  is  water-right,  ditch  or  flume,  and  every 
evidently    borrowed    in    the    Colorado  company,   corporation   or   person   who 
opinions.  shall  remove  from  this  State,  with  in- 

6  See    "Appropriation    for    Future  tent  or  purpose  to  change  his  or  their 
Needs,"  supra,  sec.  483  et  seq.  residence,  and  shall  remain  absent  one 

7  Ibid.  year  without  using  or  exercising  own- 

8  Oregon     Comp.     Stats.     1887,     p.  ership  over  such  water-right,  ditch  or 
1639,  sec.  3833,  Act  Oct.  29,  1887,  sec.  flume,  by  a  legally  authorised  agent, 
1,  being  section  7  of  the  act  relating  shall  be  deemed  to  have  lost  all  title, 
to  mines  and  mining  claims,  page  685 :  claim  or  interest  therein." 
"Whenever  any  person,   company,    or  97  Or.  457,  1  Morr.  Min.  Rep.  63. 


§  57G  Ch.  25.     LOSS  OF  EIGHT.  (3d  ed.)  619 

year  to  exercise  any  acts  of  ownership  over  it."  It  thus,  instead 
of  providing  forfeiture,  weakens  even  the  rule  of  abandonment 
by  providing  a  year  of  grace  not  elsewhere  given.10  In  Noland 
v.  Coon  u  the  Oregon  statute  referred  to  in  Dodge  v.  Harden 
was  enforced,  an  intent  to  abandon  being  shown  to  coexist  with 
the  one  year  (and  more)  of  nonuser,  and  likewise  in  another 
case  where  a  ditch  was  destroyed  and  filled  up  by  a  landslide 
and  not  used  again  to  take  out  water  for  ten  years,  it  was  held 
an  abandonment  within  the  Oregon  act.12  This  Oregon  act  is 
frequently  referred  to  as  providing  forfeiture  as  distinguished 
from  abandonment,  but  such  reference  is  not  correct,  as  it  thus 
provides  grace  instead  of  forfeiture,  and  has  no  force  in  the  direc- 
tion of  forfeiture. 

The  recent  statutes  and  water  codes  usually  contain  a  definite 
period  of  time  after  which  nonuse  causes  loss  of  right.  The 
earliest  of  these  is  the  Wyoming  law  of  1888,13  providing  that 
nonuser  for  two  years  (now  extended  to  five  years)  14  "shall 
be  deemed  an  abandonment."  This  has  been  held  not  to  apply 
where  such  failure  results  from  the  unlawful  diversion  of  another. 
It  means  a  voluntary  failure.15  A  Utah  statute  ie  contained  the 
same  provision  as  section  1411  of  the  California  Civil  Code,  add- 
ing that  when  one  "ceases  to  use  the  water  for  a  period  of  seven 
years  the  right  ceases;  but  questions  of  abandonment  shall  be 
questions  of  fact  and  shall  be  determined  as  other  questions  of 
fact."  So  far  as  this  section  has  been  before  the  court,  the 
court  has  always  considered  it  from  the  view  of  intention  and 
abandonment;  not  of  forfeiture.17 

10  In  a  later  Oregon  case  it  is  said:  14  Infra. 

"The  right  to  the  use  of  water  by  non-  15  Morris  v.  Bean,  146  Fed   434. 

user  alone  cannot  be  deemed  forfeited  16  N        substantially  Laws  1905,  c. 

short  of  the  period  prescribed  by  the  log            ^    and         /fa  &              » 

statute  of  limitations  for  real  actions.  <,    '  ^nmn   -f  .,  _    ,Qn7    „   ,    1000^09 

Dodge  v.  Harden,  7  Or.  456,  1  Morr.  See  ComP'  Laws'  1907>  see'  1288x23- 

Min.   Rep.    63.     But   such   right   may  17  Stalling  v.  Ferrm,  7  Utah,  477, 

become  extinguished  by  any  act  show-  27  Pac-  686;  Gill  v.  Malan,  29  Utah, 

ing  an  intent  to   surrender  or   aban-  431>  82  Pac-  4™ ;  Promontory  etc.  Co. 

don  the  right,  after  which,  if  the  per-  *•  Argile,  28  Utah,  398,  79  Pac.  47. 

son   having   the   right    ceases   its    use  In  tne  last  case>  tne  nonuser  did  not 

for    one    year,    his    interest  is  lost."  continue  for  seven  years  consecutively ; 

Hough  v.  Porter,  51  Or.  318,  95  Pac.  otherwise   the    result,    perhaps,    might 

732,  98  Pac.  1083,  102  Pac.  728.  have  been  different. 

11  1  Alaska.  36.  A    Montana    statute    contains    the 

12  Ison  v.  Nelson  Min.  Co.,  47  Fed.  same  provision.     Mont.  Civ.  Code,  sec. 
199.  1881. 

13  Eev.  Stats.,  sec.  895. 


620  (3ded.)     Pt.  III.     THE  LAW   OF  PRIOR  APPROPRIATION.       §577 

Seven  years  of  nenuser  causes  loss  of  right  in  Utah ; 18  five  in 
Wyoming  19  and  Idaho ; 20  four  in  New  Mexico ; 21  three  in  North 
Dakota  22  and  South  Dakota ; 23  two  years  in  Oklahoma.24 

Such  statutes  as  these  will  probably  be  construed  in  the  light 
of  Smith  v.  Hawkins,  as  providing  for  forfeiture  in  invitum, 
regardless  of  intent  not  to  abandon.  They  preserve  the  posses- 
sory test  (possession  of  the  stream  with  a  bona  fide  intent)  for  a 
definite  period  of  years,  but  not  after  that. 

(3d  ed.) 

§  577.    Transitionary   State   of   the   Law. — The    evolutionary 

condition  of  the  law  of  appropriation  at  the  present  time  from 
a  possessory  system  to  one  based  upon  a  specific  use  is  shown 
markedly  in  the  present  matter.  Arising  upon  the  public  domain 
(to  which,  in  California,  it  remains  confined)  as  a  possessory 
right  (though  turned  into  a  freehold  by  the  act  of  1866),  it  took 
on  the  characteristic  features  of  a  system  based  upon  possession 
of  the  natural  resource,  or  a  portion  of  its  flow.  Actual  diversion 
(the  taking  of  possession)  created  the  right;  capacity  of  ditch 
(the  amount  in  possession)  measured  the  right;  changes  were  per- 
mitted, the  possession  being  independent  of  place  or  character  of 
use.  Beneficial  use  was  represented  by  the  requirement  of  a  bona 
fide  intention;  and,  as  concerns  loss  of  right,  the  right  remained 
until  possession  was  relinquished  with  actual  intention  to  abandon.25 
The  law  of  abandonment  of  appropriative  rights  is  based  upon 
this  possessory  origin  of  the  law,  concerned  more  with  relinquish- 
ment  of  possession  than  with  failure  of  use. 

To-day,  as  we  have  frequently  pointed  out,  the  law  of  appro- 
priation is  undergoing  a  change  in  which  possession  of  the  stream 
or  of  its  flow  is  ceasing  to  be  -important,  and  beneficial  use  is 

is  Stats.,  supra.  22  N.  D.  Stats.  1905,  e.  34,  see.  48 ; 

19  Wyo.   Stats.   1905,  p.  36;    Stats.       formerly     four     years.     Rev.     Codes, 
1907,   p.   138,   sec.    12;    formerly   two       1905,  sec.  765. 

years  in  Stats.  1888,  c.  55,  sec.  14,  23  s.  D.  Stats.  1907,  p.  373,  sec.  4.6 ; 
Rev.  Stats.,  sec.  895.  formerly  two  years  in  Stats.  1905,  p. 

20  Idaho  Stats.  1905,  p.  27;  but  see      201    c    132,  sec.  45. 

Stats     1907     p.    507     providing    that  24  Qk]    gtatg>   ]9Q5          274         gl 

this  shall  not  app  y  to  the  doctrine  of  gec   2g_     TwQ             in' Kansas  in  some 

"annual    increase      or    "appropriation  cageg_     gee    G>        L            19Q9     gecg> 

for  future  needs."     Supra,  sec.  483.  ..„,,    4440 

21  N.   M.   Stats.   1905,   p.   270,   sec.  au' 

5;  Stats.  1907,  p.  71;  Hagerman  etc.          25  See   cross-references,  supra,   sec. 

'Co.  v.  McMurray   (N.  M.),  113  Pac.       139- 

823. 


§578  Ch.  25.     LOSS  OF  EIGHT.  (3d  ed.)  621 

becoming  very  important.-  This  has  been  affecting  the  law  of 
loss  of  right.  The  first  step  away  from  the  possessory  test  of  loss 
of  right  was  in  the  above  matter,  fixing  a  definite  number  of  years 
of  nonuse  after  which  retention  of  possession  of  the  flow  ceased 
to  be  a  consideration;  five  years  in  California  and  from  two  to 
five  years  under  recent  water  codes;  being  the  introduction  of  for- 
feiture as  just  considered. 

A  still  further  step  is  now  well  under  way,  looking  almost  solely 
to  beneficial  use  at  time  of  controversy.  As  considered  under  the 
question  of  beneficial  use,26  the  decisions  and  statutes  to-day  are 
making  "beneficial  use  the  basis,  the  measure  and  the  limit  of  the 
right,"  whether  the  time  during  which  possession  has  been  held 
without  use  has  been  reasonable  or  unreasonable,'  or  whether  it  has 
exceeded  the  statutory  number  of  years,  or  not.  For  a  further 
consideration  of  this  latest  phase  the  reader  is  referred  to  another 
place.1  Yet  it  is  not  clear  that  the  law  should  wholly  disregard  the 
allowance  of  a  reasonable  time  during  which  possession,  though  in 
nonuse,  may  be  held;  nor  is  it  clear  that  the  courts  can,  if  they 
would,  wholly  disregard  the  retention  of  possession,  though  with- 
out use,  for  a  fixed  period  of  years,  when  such  period  is  allowed 
by  statute. 

(3d  ed.) 

§  578.    Conclusions  Regarding  Abandonment  and  Forfeiture. — 

As  accurate  conclusions  of  the  present  state  of  the  law  as  the 
writer  can  form  are  as  follows: 

(a)  Abandonment,  strictly  speaking,  occurs  only  where  there 
has  been  an  actual  relinquishment  of  possession  of  the  flow,  and 
an  intention  that  the  relinquishment  be  permanent.     Nonuser  is 
evidence  of  such  intention,  but  must  continue  for  an  unreasona- 
ble time  before  it  alone  shows  such  intention.     Per  contra,  during 
a  reasonable  time,  the  right  to  the  flow  to  the  capacity  of  the  ditch 
(the  amount  in  possession)  is  not  lost  by  abandonment  where  there 
is  nothing  biit  nonuser  to  show  an  intention  to  abandon,  and  what 
is  a  reasonable  time  is  a  question  of  fact  in  each  case. 

(b)  By  the  introduction  of  the  principle  of  forfeiture  in  most 
States,  the  foregoing  becomes  true  only  for  a  fixed  period  (usually 
from  two  to  five  years)    after  which  no  intention  to  abandon  is 

26  Supra,  sec.  473  et  seq.  1  See    cross-references,    supra,    sec. 

139. 


622  (3ded.)     Pt.  III.     THE  LAW  OF  PRIOR  APPROPRIATION.       §579 

necessary,  and  nonuse  ipso  facto  causes  loss  of  right  to  the  extent 
that  it  has  continued  for  the  period  specified  to  cause  forfeiture. 

(c)  By  the  latest  movement  in  the  law,  there  is  a  tendency  not 
to  consider  either  the  statutory  period  of  nonuse,  nor  any  ques- 
tion of  reasonable  time,  but  to  make  actual  use  at  time  of  con- 
troversy the  sole  test;  but  considering  the  law  as  a  whole,  while 
it  is  difficult  to  draw  a  conclusion,  the  correct  statement  seems  to 
be  that  the  right  to  water  by  appropriation  is  lost  in  whole  or 
part  by  nonuse  for  an  unreasonable  time  (not  exceeding  the  period 
fixed  by  statute  for  loss  of  right  by  nonuse)  prior  to  the  time  a 
controversy  arises. 


C.     ADVERSE  USE  OR  PRESCRIPTION. 
(3d  e<3.) 
§  579.     General. — By  one  allowing  another  to  divert  the  water, 

or  to  use  a  ditch2  (in  whole  or  in  part),3  adversely  for  the  stat- 
utory period,  the  right  is  correspondingly  lost  by  the  former  and 
acquired  by  the  latter.4  A  corporation  is  in  this  respect  on  the 
same  footing  as  a  natural  person.5  A  landlord  may  lose  his  right 
in  this  way,  if  the  adverse  use  is  against  his  tenant.6  Con- 
temporaneous adverse  use  by  several  may  ripen  into  a  separate 
right  for  each.7 

The  principle  of  adverse  use  is  entirely  distinct  from  that  of 
appropriation.  It  is  said  in  California:  "An  appropriator  of 
water  under  these  circumstances,  and  while  the  land  which  he  sub- 
jects to  his  necessary  uses  continues  to  be  part  of  the  public 
domain,  is  a  licensee  of  the  general  government;  but  when  such 
part  of  the  public  domain  passes  into  private  ownership  it  is  bur- 

2  McEwen  v.  Preece,  45  Wash.  612,  101  Cal.  242,  35  Pac.   770;   Faulkner 
88   Pac.   1031;   Bashore  v.  Mooney,  4  v.  Rondoni,  104  Cal.  140,  37  Pac.  883; 
Cal.  App.  276,  87  Pac.  553.  Higuera   v.    Del   Ponte    (Cal.    App.), 

3  Union  Water  Co.  v.  Crary,  25  Cal.  88    Pac.    808 ;    State    v.    Quantic,    37 
509,  85  Am.  Dec.  145;   1  Morr.  Min.  Mont.    32,    94    Pac.   499,   quoting   the 
Rep.    196;    Evans    v.    Ross    (Cal.),    8  first  edition  of  this  book,  page  278. 
Pac.  88 ;  Smith  v.  Green,  109  Cal.  228,  »  Montecito   etc.  Co.  v.   Santa  Bar- 
at  233,  41  Pac.  1022;  Smith  v.  Haw-  bara,  144  Cal.  578,  77  Pac.  1113. 
kins,    120    Cal.    86,    52    Pac.    139,    19  6  Heilbron     v.     Last     Chance     etc. 
Morr.    Min.    Rep.     243;     Bashore    v.  Ditch   Co.,   75   Cal.   117,   17   Pac.   65. 
Mooney,  4  Cal.  App.  276,  87  Pac.  553.  So    one    may    acquire    a    prescriptive 

4  Davis  v.  Gale,  32  Cal.  26,  91  Am.  right  through   use   by   one's   tenants; 
Dec.    554,    4    Morr.    Min.    Rep.    604;  Perry    v.    Calkins     (Cal.    1911),    113 
Cox  v.   Clough,   70   Cal.   345,   11   Pac.  Pac.  136. 

732 ;  Alta  etc.  Co.  v.  Hancock,  85  Cal.  7  Collins  v.  Gray,  3  Cal.  App.  72.3, 

219,  20  Am.  St.  Rep.  217,  24  Pac.  86  Pac.  983;  Abbott  v.  Pond,  142 
645;  Gallagher  v.  Montecito  etc.  Co.,  Cal.  396,  76  Pac.  60. 


§579  Ch.  25.     LOSS  OF  EIGHT.  (3d  ed.)  623 

dened  by  the  easement  granted  by  the  United  States  to  the  appro- 
priator,  who  holds  his  rights  against  this  land  under  an  express 
grant.  In  this  essential  respect,  that  is  to  say,  in  the  origin  of 
the  title  under  which  the  servient  tenement  is  subjected  to  the 
use,  one  holding  water-rights  by  such  appropriation  differs  from 
one  who  holds  water-rights  by  prescription.  The  differences  are 
twofold.  A  prescriptive  right  could  not  be  acquired  against  the 
United  States,  and  can  be  acquired  only  by  one  claimant  against 
another  private  individual.  Again,  such  an  appropriation,  to 
perfect  the  rights  of  the  appropriator,  does  not  necessitate  use 
for  any  given  length  of  time,  while  time  and  adverse  use  are 
essential  elements  to  the  perfection  of  a  prescriptive  right."  8  But 
the  two  rights  are  not  necessarily  inconsistent.9  A  notice  of 
appropriation  is  not  necessary  to  make  out  a  right  by  adverse 
use;10  nor,  on  the  other  hand,  is  a  diversion  under  such  notice 
per  se  adverse ;  u  but  proof  not  amounting  to  adverse  use  may 
be  sufficient  to  establish  a  priority  by  appropriation.12 

No  prescriptive  right  can  arise  to  be  negligent,  as,  for  example, 
to  negligently  allow  seepage  from  a  ditch,13  or  to  continue  a  public 
nuisance.14  No  prescriptive  right  can  arise  to  maintain  a  ditch 
on  a  highway,  being  a  public  nuisance.15 

The  burden  of  proof  is  upon  the  adverse  claimant.16  Evidence 
of  a  prescriptive  right  must  be  clear  and  conclusive,17  but  proof 
of  actual  use  for  the  prescriptive  period  raises  a  presumption 
that  it  was  adverse  in  character.18  The  right  by  adverse  use  must 

8  Smith  v.  Hawkins,  110  Cal.  122,  Cal.  403,  90  Pac.  1052.     Nor  gener- 
42     Pac.     453.     See,     also,     State    v.  ally  any  property  set  apart  for  public 
Quantic,  37  Mont.  32,  94  Pac.  499.  use;  People  v.  Kerber,  152  Cal.  731; 

9  Hough  v.  Porter,  51  Or.  318,  95  Visalia  v.  Jacobs,  65  Cal.  434;  Clover- 
Pac.  732,  98  Pae.  1083,  102  Pac.  728,  dale  v.  Smith,  128  Cal.  230;  Southern 
citing  Gardner  v.  Wright,  49  Or.  609,  Pacific   Co.   v.   Hyatt,    132    Cal.    240; 
632,  91  Pac.  286;   Davis  v.  Chamber-  Shaw   v.    Town    of    Sebastopol    (Cal., 
lain,  51  Or.  304,  98  Pac.  154.  Apr.  4,  1911),  115  Pac. . 

10  Alta  etc.  Co.  v.  Hancock,  85  Cal.  16  Morris    v.    Bean     (Mont.),    140 
219,  20  Am.  St.  Rep.  217,  24  Pac.  645.      Fed.  433 ;  Bauers  v.  Bull,  46  Or.  60, 

u  Weidensteiner   v.   Mally    (1909),  78    Pac.    757;    Ball   v.   Kehl,   95   Cal. 

55  Wash.  79,  104  Pac.  143.  613,    30    Pac.    780;    Ison  v.   Sturgill 

12  Hough  v.  Porter,  51  Or.  318,  95  (Or.),  109  Pac.  579;  but  semble,  con- 
Pac.  732,  98  Pac.  1083,  102  Pac.  728.  tra,  Gardner  v.  Wright,  49  Or.  609,  91 

13  Jenkins   v.   Hooper   etc.    Co.,    13  Pac.  286. 

Utah,    100,   44   Pac.    829.     See,   how-  17  McRae  v.  Small,  48  Or.  139,  85 

ever,    Middelkamp    v.    Bessemer    etc.  Pac.  503 ;  Morris  v.  Bean,  supra. 

Co.    (1909),   46   Colo.    102,    103   Pac.  18  Gurnsey    v.    Antelope    Creek    & 

280,  23  L.  R.  A.,  N.  S.,  795.  Red    Bluff    Water    Co.,    6    Cal.    App. 

14  Debris    cases,    supra,    sees.    527,  387,  92  Pae.  326. 

528.  "A   diversion   more   than   ten   years 

is  Kern  etc.  Co.  v.  Bakersfield,  151      prior  thereto  (April  1,  1890)  and  sub- 


624  (3ded.)     Pt.  III.     THE  LAW  OF  PRIOR  APPROPRIATION.       §579 


be  specially  pleaded.19  It  has  also  been  held,  however,  provable 
by  plaintiff  under  a  general  allegation  of  ownership.20  To  support 
a  plea  of  prescription  or  estoppel  there  must  be  a  finding  of  some 
definite  quantity  diverted.21 


sequent  use  is  established;  but  no  evi- 
dence was  offered  showing  an  earlier 
use.  Having  established  these  facts, 
he  made  a  prima  facie  showing  of  ad- 
verse user;  and,  this  having  been  es- 
tablished, the  burden  of  showing  that 
such  user  was  not  a  substantial  inter- 
ference with  the  rights  of  others  was 
thereby  shifted  to  the  parties  ques- 
tioning such  claim."  Hough  v.  Por- 
ter, 51  Or.  318,  95  Pac.  732,  98  Pac. 
1083,  102  Pac.  728;  Gardner  v. 
Wright,  49  Or.  609,  628,  91  Pac.  286. 

19  Since  actual  title  passes  to  the 
adverse  claimant,  he  should,  on  prin- 
ciple, it  would  seem,  be  allowed  to 
rely  thereon  by  a  general  allegation 
of  ownership,  if  a  plaintiff,  or  a  general 
denial  of  plaintiff's  ownership,  if  a 
defendant.  But  the  weight  of  author- 
ity that  the  writer  has,  supports  the 
text  strongly  as  to  the  pleading  of 
the  defendant  though  less  strongly  as 
to  the  pleading  of  plaintiff. 

Defendant  must  plead  title  by  ad- 
verse use  affirmatively  in  order  to  rely 
thereon.  Lux  v.  Haggin,  69  Cal.  255, 
at  267,  10  Pac.  674;  American  W.  Co. 
v.  Bradford,  27  Cal.  361,  15  Morr. 
Min.  Rep.  190;  Matthew  v.  Ferrea, 
45  Cal.  51;  Lux  v.  Haggin,  69  Cal. 
269,  10  Pac.  674 ;  McKeohn  v.  North- 
ern Pac.  Ry.,  45  Fed.  464;  State  v. 
Quantic,  37  Mont.  32,  94  Pac.  491, 
quoting  and  relying  on  the  first  edi- 
tion of  this  book,  page  278.  Also  the 
following  cases  semble:  Alhambra  etc. 
Water  Co.  v.  Richardson,  72  Cal.  598, 
14  Pac.  379;  Montgomery  v.  Locke,  72 
Cal.  76,  13  Pac.  401;  Chauvet  v.  Hill, 
93  Cal.  407,  28  Pac.  1066;  Churchill 
v.  Louie,  135  Cal.  611,  67  Pac.  1052; 
Montecito  W.  Co.  v.  Santa  Barbara, 
144  Cal.  596,  77  Pac.  1113.  He  may 
plead  it  simply  by  name  and  reference 
to  the  statute  of  limitations  (Par- 
tridge v.  Shepard,  71  Cal.  470,  12 
Pac.  480;  Alhambra  etc.  Water  Co. 
v.  Richardson,  72  Cal.  598,  14  Pac. 
379.  See  Churchill  v.  Louie,  135  Cal. 
608,  67  Pac.  1052;  Cal.  Civ.  Code, 
p.  458)  ;  but  if  he  chooses  to  al- 
lege the  facts  showing  adverse  use, 


he  will  be  held  strictly  to  allegation 
of  all  necessary  requisites.  Ibid.  The 
writer  has  no  Western  holding  that 
defendant  may  show  title  by  adverse 
use  under  a  general  denial,  though 
such  decisions  may  exist. 

As  to  plaintiff's  pleading,  however 
(complaint  or  declaration),  it  is  held 
that  a  general  allegation  of  own- 
ership suffices.  Gillespie  v.  Jones, 
17  Cal.  259;  Montecito  W.  Co.  v. 
Santa  Barbara,  144  Cal.  578,  77  Pac. 
1113;  Sullivan  v.  Dunphy,  4  Mont. 
505.  But  it  ha^  also  been  held  to 
the  contrary,  and  that  plaintiff,  like 
defendant,  must  specifically  allege  the 
title  by  adverse  use.  Lick  v.  Diaz, 
30  Cal.  65;  Heintzen  v.  Binninger,  79 
Cal.  5,  21  Pac.  377.  See,  also,  Cal. 
Civ.  Code,  sec.  458,  and  Winter  v. 
Winter,  8  Nev.  129.  See  this  case 
commented  on  in  State  v.  Quantic, 
supra.  At  all  events,  if  plaintiff 
chooses  to  allege  the  facts  showing  his 
adverse  use,  he,  like  the  defendant, 
will  be  held  to  a  strict  allegation  of 
all  requisites  (Ibid.),  expecting  that 
he  need  not  allege  payment  of  taxes. 
Ball  v.  Nichols,  73  Cal.  193,  14  Pac. 
831. 

Most  of  the  cases  above  cited  dealt 
with  water-rights,  but  some  with  lands. 
Possibly  a  distinction  may  exist  in 
that,  strictly  speaking,  one  "pre- 
scribes" only  for  incorporeal  heredit- 
aments, while  he  claims  land  strictly 
under  the  statute  of  limitations;  in 
the  former  case,  relying  on  the  his- 
torical fiction  of  presumption  of  grant 
from  immemorial  use  (now  shortened 
by  analogy,  but  by  analogy  only,  to 
the  period  of  limitations  for  real  es- 
tate) ;  while  in  the  latter  relying 
strictly  on  the  statute  as  having 
barred  all  possible  claim  against  him, 
so  as  to  leave  him  in  the  position  of 
an  owner;  a  historical  difference  in 
theory,  though  reaching  the  same  re- 
sult. 

20  Montecito  etc.  Co.  v.  Santa  Bar- 
bara, 144  Cal.  578,  77  Pac.  1113. 

21  Hayes  v.  Silver   Creek    etc,    Co., 
136  Cal.  240,  68  Pac.  704. 


§580  Ch.25.     LOSS  OF  EIGHT.  (3d  ed.)  625 

A  right  obtained  by  prescription  may  itself,  in  turn,  be  lost  by 
adverse  use  later,  or  in  other  ways  of  loss  of  right.22  In  one 
case  a  it  is  said  that  an  adverse  use  of  land  does  not  necessarily 
carry  with  it  water  used  thereon,  if  there  is  no  adverse  use  of 
the  water.  This  would  seem  to  be  inconsistent  with  the  rule  that 
the  water-right  usually  passes  as  an  appurtenance  to  the  land.24 

(3d  ed.) 

§  580.    Effect  of  Adverse  Use  or  Prescription. — It  is  said  that 

a  grant  will  be  presumed  to  have  been  made  to  the  adverse  claim- 
ant.25 The  rule  is  thus  stated  in  Smith  v.  Hawkins : l  ' '  One  who 
claims  a  right  by  prescription  must  use  the  water  continuously, 
uninterruptedly  and  adversely  for  a  period  of  five  years,  after 
which  time  the  law  will  conclusively  presume  an  antecedent  grant 
to  him  of  his  asserted  right."  The  rule  is  stated  in  substantially 
the  same  terms  in  Yankee  Jim's  Union  Water  Go.  v.  Crary,2  say- 
ing :  ' '  The  right  of  the  first  appropriator  may  be  lost,  in  whole  or  in 
some  limited  portions,  by  the  adverse  possession  of  another.  And 
when  such  person  has  had  the  continued,  uninterrupted  and  adverse 
enjoyment  of  the  watercourse  or  of  some  portion  of  it  during  the 
period  limited  by  the  statute  of  limitations  for  entry  upon  lands, 
the  law  will  presume  a  grant  of  the  right  so  held  and  enjoyed 
by  him."3 

The  supposed  grant,  however,  is  merely  a  fiction  of  the  law.  It 
is  not  a  reward  of  adverse  diligence,  but  a  punishment  for  delay; 
the  law  will  not  look  into  stale  demands.  The  result  is  that  title 

22  City  of  Los  Angeles  v.  Pomeroy,  ceased  to  use  it  personally  and  licensed 
125  Gal.  420,  58  Pac.  69;  Gardner  v.  use  to  another  on  his  behalf  as  agent. 
Wright,  49  Or.  609,  91  Pac.  286.  23  Alta  Land  Co.  v.  Hancock,  85 

Mere  nonuse  for  five  years  will  ex-  <£•   *$   20   Am'    St    EeP"    217>   24 

tinguish  a   servitude   acquired  by   en-  24'  ^    ' 

joyment      Cal    Civ    Code,   811.     This  25  ^^        Tuolumne  J^  c       25 

applies   to   a    ditch.     Los   Angeles   v.  Ca]   3g         M            .                        ^ 

Pomeroy,   12o   Cal.  420,   427,  58  Pac.  k       «    '  t     c          c         F25  r 'i    r04 

69;   Smith  v.  Hawkins,  110  Cal.  122,  ^  4 ™  ?w    l IK    i   lS?4.   viT*  ^ 

10*7     /(o   r>        /IRQ    fj;»+*.™\       rt,,,,  85  Am-  •L>ec-   145>  1  Morr.  Mm.  itep. 

l'«.      Fv?C>   453    <   1         )-  Jft3B       196;    American   Co.    v.    Bradford,    27 
whether  this  applies  to  a  water-right      Cal/ 360     15    Morr    Min    R        'IQQ 

acquired   by  adverse    use.     It    would  Faulkner'  v>  Eondoni    104  Cal.  140,  37 

seem  not,  since  a  water-right  is  not  a  p        ggg 

servitude.     Title  to   land  acquired  by  ^^  '„  ,    ,2Q    .„  p        ... 

adverse  possession  is  not  lost  by  mere  2  25  Ca]  '5Q9  >85  Am>  •         • 

nonuse-  Morr.  Min.   Rep.   196. 

Compare  Strong  v.  Baldwin  (1908),  3  Yankee  Jim's  Union  Water  Co.  v. 

154  Cal.  150,   129  Am.  St.  Eep.   149,  Crary,  25  Cal.  509,  85  Am.  Dec.  145, 

97  Pac.  178,  as  to  nonuse  not  ending  1    Morr.    Min.    Rep.     196.        Accord, 

a    prescriptive    right    where    claimant  Evans  v.  Ross  (Cal.),  8  Pac.  88. 
Water  Eights — 40 


626  (3ded.)     Pt.  III.     THE   LAW   OF   PRIOR   APPROPRIATION.       §580 


passes  in  either  view.4  Actual  title  passes,  such  as  will  support 
an  action  to  quiet  title,5  or  which  can  be  proved  under  a  general 
allegation  of  ownership.6  The  continuance  of  the  use  is  hence 
no  longer  a  cause  of  action  as  a  continuing  trespass.7  The  title 
once  acquired  is  as  complete  as  any  other.8 

The  question  of  priority  as  concerns  a  right  obtained  by  adverse 
use  has  not  arisen,  but  seems  a  point  that  may  well  give  difficulty. 
On  the  presumed  grant  theory,  the  newly-acquired  right  would 
retain  the  priority  of  the  original  appropriation,  as  a  grant  in 
writing  transmits  the  right  without  loss  of  priority.  But  if  that 
fiction  is  laid  aside,  it  would  seem  that  the  adverse  use  gives  a 
right  only  from  the  start  of  the  adverse  use,  as  a  new  appropriator 
by  actual  diversion,  as  in  the  case  of  a  parol  sale.9  It  has  been 
said  that  the  right  obtained  by  adverse  use  dated  only  from  the 
first  adverse  diversion,10  and  that  "where  a  right  rests  upon  the 
statute  of  limitations,  'the  disseisor  acquires  a  new  title  founded 
on  the  disseisin.  He  does  not  acquire  or  succeed  to  the  title  and 


4  Alhambra  etc.  Water  Co.  v.  Rich- 
ardson, 72  Cal.  598,  14  Pac.  379;  Cal. 
Civ.  Code,  1007;  Woodward  v.  Faris, 
109  Cal.   12,  41   Pac.  781;    Strong  v. 
Baldwin,   154   Cal.   150,   129   Am.   St. 
Rep.  149,  97  Pac.  178. 

5  Bashore  v.   Mooney,  4   Cal.   App. 
276,  87  Pac.  553. 

6  Montecito  etc.  Co.  v.   Santa  Bar- 
bara, 144  Cal.  578,  594,  77  Pac.  1113. 
Also  to  the  effect  that  not  only  is  the 
remedy     barred,     but     title     actually 
passes,  Wutchumna  etc.  Co.  v.  Ragle, 
148  Cal.  759,  84  Pac.  162. 

1  Patterson  v.  Ft.  Lyon  etc.  Co., 
36  Colo.  175,  84  Pac.  807.  But  in 
Henshaw  v.  Salt  River  etc.  Co.,  9 
Ariz.  418,  84  Pac.  908,  an  action  was 
allowed  after  the  prescriptive  period 
on  the  ground  that  it  was  a  contin- 
uing trespass  and  only  right  of  action 
for  past  diversion  was  barred,  which 
would  nullify  the  rule  of  adverse  use 
entirely. 

The  injuries  to  land  from  water 
seeping  from  a  properly  constructed 
irrigation  ditch  which  is  intended  to 
be  permanent  constitutes  a  single  cause 
of  action,  and  as  affected  by  the  stat- 
utes of  limitations  accrues  at  the  be- 
ginning of  the  injury.  Middelkamp 
v.  Bessemer  etc.  Co.  (1909),  46  Colo. 
102,  103  Pac.  280,  23  L.  R.  A.,  N.  S., 


795.  Likewise  all  cause  of  action 
from  flooding  is  barred  at  the  end  of 
the  statutory  period,  not  from  the 
completion  of  the  structure,  but  from 
the  first  injury.  Gulf  Ry.  Co.  v. 
Moseley  (Ind.  Ter.),  161  Fed.  72; 
88  C.  C.  A.  236;  Greeley  Irr.  Co.  v. 
Von  Trotha  (Colo.),  108  Pac.  985. 

8  "No  principle  of  law  is  better  es- 
tablished than  that,  when  title  is  once 
acquired  by  adverse  possession  for  the 
statutory  period,  such  title  remains  in 
the    person    so    acquiring    it    as   com- 
pletely as  if  conveyed  to  him  by  deed 
from     the     owner.      (Citing     Joy     v. 
Stump,    14    Or.    361,    12    Pac.    929.) 
Therefore,  after  the  title  by  such  pos- 
session became  complete,  no  interrup- 
tions were  of  any  avail  to  plaintiffs, 
unless  actual,  open,  exclusive,  continu- 
ous, and  adverse,  under  claim  of  own- 
ership    for     the     statutory     period." 
Gardner   v.    Wright,    49    Or.    609,    91 
Pac.  286,  citing  B.  &  C.  Comp.  Stats., 
sec.  4;  Pearson  v.  Dryden,  28  Or.  350, 
43  Pac.  166;  Oregon  Con.  Co.  v.  Allen 
Ditch  Co.,  41  Or.  209,  93  Am.  St.  Rep. 
701,   69   Pac.   455. 

9  Supra,  sec.  555. 

10  Lavery  v.  Arnold,  36  Or.  84,  57 
Pac.  906,  58  Pac.  524;  Oregon  etc.  Co. 
v.  Allen  etc.  Co.,  41  Or.  209,  93  Am. 
St.  Rep.  701,  69  Pac.  455. 


§581  Ch.  25.     LOSS  OF  EIGHT.  (3d  ed.)  627 

estate  of  the  disseisee,  but  is  vested  with  a  new  title  and  estate 
founded  on  and  springing  from  the  disseisin.'  "u 

(3d  ed.) 

§  581.  Extent. — The  extent  of  the  use  during  the  prescriptive 
period  limits  the  right.12  Citing  other  authorities  it  is  said : 13 
"The  principle  declared  by  these  authorities  is  that  the  rights  of 
a  party  who  has  acquired  a  prescriptive  title;  and  the  rights  of 
one  against  whom  said  title  is  acquired,  are  mutual,  and  each  is 
entitled  to  demand  that  the  prescriptive  right  be  exercised  in  the 
same  manner  that  it  was  exercised  while  it  was  being  acquired." 
Adverse  use  for  watering  of  stock  alone  could  gain  a  right  only 
to  the  extent  of  the  use,  and  it  would  not  confer  any  right  to  the 
additional  use  of  water  for  the  irrigation  of  land.14 

Where  plaintiff  constructed  an  irrigation  ditch  across  defendants' 
land,  plaintiff  could  acquire  a  prescriptive  right  to  use  and  main- 
tain the  ditch  for  the  specific  purpose  of  conveying  a  given  quan- 
tity of  water  while  defendants  at  the  same  time  were  using  a 
portion  of  the  same  ditch  to  convey  a  separate  distinct  quantity 
of  water,  plaintiff's  prescriptive,  right  being  limited  tb  his  use  as 
measured  by  the  quantity  of  his  water  carried  through  the  ditch.15 
Consequently  the  prescriptive  right  may  be  for  only  a  limited 
amount  of  water  in  a  ditch,16  and  the  person  against  whom  it  is 
acquired  may  use  the  property  himself  in  any  manner  not  incon- 
sistent with  the  right  thus  limited.17 

Not  only  is  the  right  limited  by  the  use,  but  conversely  the  right 
is  coextensive  with  the  use  during  the  prescriptive  period  and  can- 
not thereafter  be  restricted  by  the  former  owner,  as,  for  example, 

11  Alhambra  etc.  Water  Co.  v.  Rich-  Pac.    608;    White    v.    White    (1906), 
ardson,  72  Cal.  598,  608,  14  Pac.  379.  App.  Gas.  72  (Eng.). 

12  Burris  v.  People's  Ditch  Co.,  104  13  Wutchumna  etc.  Co.  v.  Ragle,  148 
Cal.  248,  37  Pac.  922 ;  Hall  v.  Carter,  Cal.    759,    84    Pac.    165.     See,    also, 
33  Tex.  Civ.  App.  230,  77  S.  W.  19;  Logan  v.   Guichard    (Cal.   1911),   114 
North  Fork  Co.  v.  Edwards,  121  Cal.  Pac.  989. 

662,  54  Pac.  69;  Smith  v.  Hampshire,  14  Duckworth  v.  Watsonville  etc.  Co., 

4  Cal.  App.  8,  87  Pac.  224;  Knight  v.  150   Cal.   520,   89  Pac.   338;   Same  v. 

Cohen,  7  Cal.  App.  43,  93  Pac.  396;  Same,  158  Cal.  206,  110  Pac.  927. 

Chessman  v.   Hale,   31   Mont.   577,  79  15  Smith  v.  Hampshire,  4  Cal.  App. 

Pac.   256,   68  L.  R.  A.   410,   13   Ann.  8,  87  Pac.  224. 

Cas.    1038;    Norman    v.    Corbley,    32  16  Bashore  v.  Mooney,  4  Cal.  App. 

Mont.    195,    79   Pac.    1059;    Smith   v.  276,  87  Pac.  553. 

Logan,    18    Nev.    149,    1    Pac.    678;  17  Hoyt  v.   Hart,   149   Cal.   722,   87 

Boynton   v.    Longley,    19    Nev.    69,   3  Pac.  569.     See,  also,  Oliver  v.  Burnett, 

Am.  St.  Rep.  781,  6  Pac.  437;  Church  10  Cal.  App.  403,  102  Pac.  223;  Stock 

v.  Stillwell,  12  Colo.  App.  43,  54  Pac.  v.  City  of  Hillsdale  (1909),  155  Mich. 

395;  Mason  v.  Yearwood  (Wash.),  108  375,  119  N.  W.  438;  Union  Min.  Co. 


628   (3ded.)     Pt.  III.     THE   LAW   OF   PRIOR  APPROPRIATION.       §582 


a  right  acquired  by  prescription  cannot  be  restricted  by  requir- 
ing notice  to  be  given  in  advance  when  use  is  made,  where  such 
notice  was  not  given  during  the  prescriptive  period.18 

Adverse  use  of  land  does  not  carry  title  to  a  water-right  appur- 
tenant thereto  if  there  was  no  specific  use  made  of  the  water.19 

(3d  ed.) 

§  582.  Essentials. — The  following  are  the  requisites  for  the 
loss  and  acquisition  of  a  right  by  adverse  use  or  prescription,  viz. : 
The  use  must  be  continuous  for  the  statutory  period,  exclusive  (i.  e., 
uninterrupted;  i.  e.,  peaceable),  open  (i.  e.,  notorious),  under 
claim  of  right  (i.  e.,  color  of  title),  hostile,  and  an. invasion  of  the 
other's  right  which  he  has  a  chance  to  prevent,  and  taxes  must 
be  paid.  We  proceed  to  consider  each  of  these  separately.20 


v.  Dangberg,  81  Fed.  73.  But  see 
Whitehall  v.  Brown  (1909),  80  Kan. 
297,  102  Pac.  783. 

"Title  acquired  by  the  adverse  pos- 
session and  user  could  only  be  commen- 
surate and  coextensive  with  the  use  to 
which  the  land  was  being  subjected. 
The  question  as  to  the  amount  of 
ground  necessary  for  the  use  of  the 
ditch  and  right  of  way  would  be  one 
of  fact  to  be  determined  on  the  trial 
of  the  case,  and  could  not  be  measured 

by   the    calls    of    the    deed In 

other  words,  the  amount  of  land  neces- 
sary for  the  ditch  and  right  of  way 
would  have  to  be  determined  upon  the 
proofs  rather  than  upon  the  calls  of 
the  deed.  It  would  extend  only  to  the 
amount  adversely  used  and  occupied." 
Swank  v.  Sweetwater  Irr.  Co.,  15 
Idaho,  353,  98  Pac.  297. 

18  Wutchumna  etc.  Co.  v.  Ragle,  148 
Cal.   759,   84   Pac.    162.     If   claimant 
used  all  the  flow  there  was,  his  pre- 
scriptive right   extends  to   the  whole 
flow,  although  in  dry  seasons  the  flow 
came  to  less  than  the  amount  claimed. 
Perry    v.    Calkins    (Cal.    1911),    113 
Pac.    136.     See,    however,    Logan    v. 
Guichard  (Cal.  1911),  114  Pac.  989. 

19  Alta  etc.  Co.  v.  Hancock,  85  Cal. 
219,  20  Am.  St.  Rep.  217,  24  Pac.  645. 
See,  also,  93  Am.  St.  Rep.  719,  note. 

20  For  a  general  statement  of  the 
requirements,  see  Unger  v.  Mooney,  63 
Cal.  595,  49  Am.  Rep.  100  (a  leading 
case)  ;     Bashore    v.    Mooney,    4    Cal. 
App.  276,  87  Pac.  555 ;  Montecito  etc. 
Co.  v.  Santa  Barbara,  144  Cal.  578,  77 


Pac.  1113;  Silva  v.  Hawn,  10  Cal. 
App.  544,  102  Pac.  952,  and  the  note 
in  93  Am.  St.  Rep.  711. 

"To  have  been  adverse  it  must  have 
been  asserted  under  claim  of  title  with 
the  knowledge  and  acquiescence  of  the 
person  having  the  prior  right,  and 
must  have  been  uninterrupted.  In 
order  to  constitute  a  right  by  pre- 
scription, there  must  have  been  such 
an  invasion  of  the  rights  of  the  party 
against  whom  it  is  claimed,  that  he 
would  have  had  ground  of  action 
against  the  intruder.  To  be  adverse, 
it  must  be  accompanied  by  all  the 
elements  required  to  make  out  an  ad- 
verse possession;  the  possession  must 
be  by  actual  occupation,  open,  noto- 
rious, and  not  clandestine;  it  must  be 
hostile  to  the  other's  title;  it  must 
be  held  under  claim  of  title,  exclusive 
of  any  other  right,  as  one's  own;  it 
must  be  continuous  and  uninterrupted 
for  the  period  of  five  years."  Alta  L. 
&  W.  Co.  v.  Hancock,  85  Cal.  219,  20 
Am.  St.  Rep.  217,  24  Pac.  645. 

For  recent  examples  where  pre- 
scriptive rights  were  upheld,  see  Silva 
v.  Hawn,  10  Cal.  App.  544,  102  Pac. 
952;  Evans  v.  Lakeside  D.  Co.,  13 
Cal.  App.  119,  108  Pac.  1027;  Tosini 
v.  Cascade  etc.  Co.  (1909),  22  S.  D. 
337,  117  N.  W.  1037;  Davis  v.  Angelo, 
8  Cal.  App.  305,  96  Pac.  909;  Davis 
v.  Chamberlain,  51  Or.  304,  98  Pac. 
154;  Mason  v.  Yearwood  (Wash.),  108 
Pac.  608;  Malmstrom  v.  People's  D. 
Co.  (Nev.),  107  Pac.  98. 

Where  persons  whose  names  ap- 
peared on  a  map  were  owners  of  the 


583 


Ch.  25.    LOSS  OF  EIGHT. 


(3ded.)  629 


(3d  ed.) 

§  583.  Continuous. — The  use  must  be  continuous  for  the  period 
of  the  statute  of  limitations  governing  actions  for  the  recovery  of 
real  property.21  This  period  is  five  years  in  California,22  which 
has  been  thought  unfortunate  as  an  unusually  short  period,  but 
has  been  copied  frequently  in  the  West.23  The  statutory  period 
is  three  years  in  Arizona ; 24  five  years  in  California,25  Colorado,1 
Idaho,2  Nevada ; 3  seven  years  in  Utah ; 4  ten  years  in  Nebraska,5 
Montana,6  North  Dakota,7  Oregon,8  Texas,9  and  Washington ; 10 
fifteen  years  in  Kansas';  u  twenty  years  in  South  Dakota.12 

It  is  sufficiently  continuous  if  the  adverse  claimant  used  the 
water  regularly  as  his  needs  required,  though  this  did  not  neces- 
sitate a  steady  flow.13  In  one  case,14  it  was  held  that  where 


various  tracts  of  land  marked  with 
their  respective  names,  and  for  over 
ten  years  they  and  their  predecessors 
in  interest  had  diverted  and  used 
through  a  certain  ditch  all  the  surface 
flow  of  the  stream  continuously  and 
uninterruptedly  and  under  claim  of 
title  as  against  all  owners  of  land 
below  the  ditch,  which  ditch  carried 
practically  all  the  water  of  the  stream, 
the  former  acquired  a  prescriptive 
right  against  the  lower  owners.  Ar- 
royo D.  Co.  v.  Baldwin  (1909),  155 
Gal.  280,  100  Pac.  874. 

Artificial  contrivances  are  not  neces- 
sary; use  through  existing  or  natural 
conduits  may  be  adverse.  Evans  v. 
Lakeside  D.  Co.,  13  Cal.  App.  119,  108 
Pac.  1027. 

21  Cal.  Code  Civ.  Proc.,  325;  Mason 
v.  Yearwood  (Wash.),  108  Pac.  608; 
State  v.  Quantic,  37  Mont.  32,  94  Pae. 
491. 

22  Cal.  Code  Civ.  Proc.,  sec.  318. 

23  Pomeroy     on     Eiparian     Eights, 
sees.  137,  151. 

24  Semble,    Eev.    Stats.    1901,    sec. 
2935.     Ten  years  in  some  cases. 

25  Code  Civ.   Proc.,   318;    Alta  etc. 
Co.  v.  Hancock,  85  Cal.  219,  20  Am. 
St.  Eep.  217,  24  Pac.  645;  Gallagher  v. 
Water  Co.,  101  Cal.  242,  35  Pac.  770; 
Eice  v.  Meiners,  136  Cal.  292,  68  Pac. 
817;  Gutierrez  v.  Wege,  145  Cal.  730, 
79  Pac.  449;   Silva  v.  Hawn,   10  Cal. 
App.   544,   102   Pac.   952.     Ten  years 
against    the    State.     Code    Civ.    Proc. 
315 

1  M.  A.  S.,  sec.  2923;  Laws  1874,  p. 
177. 

2  Gen.  Stats.  1887,  sec.  4043;   Hall 
v.   Blackman,   8   Idaho,   272,   68   Pac. 


19;     Swank    v.    Sweetwater    Co.,    15 
Idaho,  353,  98  Pac.  297. 

3  Boynton  v.  Longley,  .19   Nev.  69, 
3  Am.  St.  Eep.  781,  6  Pac.  437. 

4  Center    etc.    Co.    v.    Lindsay,    21 
Utah,  192,  60  Pac.  559. 

Compare,   also,  Lara  v.   Sandell,  52 
Wash.  53,  100  Pac.  166. 

5  Crawford  etc.  Co.  v.  Hathaway,  67 
Neb.   325,   108  Am.   St.  Eep.   647,  93 
N.  W.  781,  60  L.  E.  A.  889. 

6  Smith  v.   Duff    (1909),  39   Mont. 
374,  133  Am.  St.  Eep.  582,  102  Pac. 
981.     See  Talbott  v.  Butte  etc.  Co.,  29 
Mont.  17,  73  Pae.  1111,  formerly  five 
years,  semble. 

^  Eev.  Codes,  1905,  sec.  4928. 

8  Ison   v.   Sturgill    (Or.),   109   Pac. 
579.    Formerly  twenty  years  (semble), 
Dodge  v.  Marden,  7  Or.  456,  1  Morr. 
Min.    Eep.    63. 

9  Haas  v.  Choussard,  17  Tex.  588; 
Evans  v.  Scott,  37  Tex.  Civ.  App.  373, 
83  S.  W.  874. 

10  Benton  v.  Johncox,  17  Wash.  277, 
61  Am.  St.  Eep.  912,  49  Pac.  496,  39 
L.  E.  A.  107.     Seven  years   (semble), 
Lara    v.    Sandell,    52    Wash.    53,    100 
Pac.   166. 

11  Gen.  Stats.  1905,  sec.  4883. 

12  Eev.  Codes  1903,  Civ.  Code,  sec. 
43. 

13  Hesperia  etc.   Co.   v.   Eogers,   83 
Cal.  10,  17  Am.  St.  Eep.  209,  23  Pac. 
196.     See  93  Am.  St.  Eep.  717,  note; 
Collins  v.  Gray,  3  Cal.  App.   723,  86 
Pac.  983;  McDougal  v.  Lame,  39  Or. 
212,  64  Pac.  864;  Smith  v.  Logan,  18 
Nev.  149,  1  Pac.  678;  Strong  v.  Bald- 
win  (1908),  154  Cal.  150,  129  Am.  St. 
Eep.  149,  97  Pac.   178. 

14  McDougal  v.  Lame,  just  cited. 


630  (3ded.)     Pt.  III.     THE  LAW  OF  PEIOR  APPKOPRIATION.       §584 

plaintiffs  claimed  an  easement  for  mining  purposes  in  the  water 
of  a  stream  which  contained  water  only  during  the  winter  sea- 
son, and  plaintiffs  used  it  whenever  available,  the  fact  that  they 
did  not  use  the  water  the  entire  year  did  not  prevent  their  adverse 
use  from  being  continuous.  In  the  leading  case  of  Hesperia  etc. 
Co.  v.  Rogers,15  Mr.  Justice  Thornton,  commenting  upon  this 
principle,  says:  "The  correct  rule  as  to  continuity  of  user,  to 
give  a  presumptive  right  to  an  easement,  and  what  shall  consti- 
tute such  continuity,  can  be  stated  only  with  reference  to  the 
nature  and  character  of  the  right  claimed.  The  right  is  not 
abandoned  to  the  use  of  a  ditch  to  convey  water  for  purposes  of 
irrigation,  because  water  does  not  flow  in  it  every  day  in  the  year. 
The  party  claimant  does  not  need  the  ditch  every  day  in  the  year, 
and  the  law  does  not  require  him,  to  constitute  continuity  of  use, 
to  use  the  water  when  he  does  not  need  it.  If  he  has  used  the 
ditch  at  such  times  as  he  needed  it,  it  is  regarded  by  the  law  as 
a  continuous  use.  If  a  right  of  way  over  another's  land  has  been 
used  for  more  than  five  years,  it  is  not  necessary,  to  make  good 
such  use,  that  the  claimant  has  used  it  every  day.  He  uses  it 
every  day,  Oi"  once  in  every  week,  or  twice  a  month,  as  his  needs 
require.  He  is  not  required  to  go  over  it  when  he  does  not  need 
it,  to  make  his  use  of  the  way  continuous.  The  claimant  is 
required  to  make  such  reasonable  use  of  the  way  as  his  needs 
require.  So  it  is  with  the  ditch.  If,  whenever  the  claimant  needs 
it  from  time  to  time,  he  makes  use  of  it,  this  is  a  continuous 
use."16 

But,  where  the  periodical  character  of  the  use  arose  not  from 
claimant's  own  free  will,  but  because  of  annual  interruption  by 
the  owner,  there  is  no  adverse  use.17 

(3d  ed.) 

§  584.    Exclusive ;  Uninterrupted. — The  terms  "exclusive"  and 

"uninterrupted"  probably  represent  the  same  thing  in  this  con- 
nection; namely,  that  to  the  extent  of  the  right  claimed,18  the 

15  83   Cal.   10,   23  Pac.   196.  An   adverse    user    of    an   irrigation 

16  A  more  recent  case  says :  "There  ditch  during  the  cropping  season  only, 
is  a  finding,  that  for  more  than  five  constitutes  a  continuous  adverse  user, 
years    plaintiff    and    others    used    the  Silva  v.  Hawn,  10  Cal.  App.  544,  102 
same  as  often  as  required  by  them  for  Pac.  952. 

irrigating   purposes.     This  is   a  suffi-  17  Bree  v.  Wheeler,  4  Cal.  App.  109, 

cient  finding  as  to  continuous  use,  hav-  87  Pac.  255. 

ing    the    character    of    use    in    view."  18  See  supra,  sec.  459,  as  to  use  of 

€ollins  v.  Gray,  3  Cal.  App.   723,  86  ditch  jointly  with  owner. 

Pac.   983. 


§584 


Ch.  25.     LOSS  OF  BIGHT. 


(3ded.)  631 


claimant  must  not  have  shared  the  use  with  the  true  owner,  nor 
suffered  any  act  of  dominion  by  him,  such  as  an  interruption. 
The  use  must  be  uninterrupted.19  Mere  verbal  objection  is  not 
an  interruption ;  it  must  be  some  act  actually  causing  a  stoppage 
in  the  adverse  use  for  a  reasonable  time,20  though  it  has  been 
held  that  use  under  continual  dispute  is  not  adverse.21 

The  burden  of  showing  that  the  use  was  uninterrupted  is  on 
the  adverse  claimant.22  Turning  water  out  of  defendant's 
(claimant's)  ditch  is  sufficient  interruption,  though  he  turned 
it  back  again  when  plaintiff  left.23  An  annual  interruption  pre- 
vents adverse  use.24  Secret  interruption  by  stealth  does  not 
stop  the  running  of  adverse  use.25 

It  has  been  held  that  the  word  "uninterrupted"  comprehends 
"continuous,"1  and  that  "uninterrupted"  is  synonymous  with 
"peaceable"  so  far  as  necessary  in  pleading  prescriptive  title.2 

A  suit  by  a  third  person  against  the  adverse  claimant  does  not 


19  American  Co.  v.  Bradford,  27 
Cal.  360,  15  Morr.  Min.  Rep.  190; 
Davis  v.  Gale,  32  Cal.  36,  91  Am.  Dec. 
554,  4  Morr.  Min.  Rep.  604;  Cave  v. 
Crafts,  53  Cal.  135;  Bree  v.  Wheeler, 
129  Cal.  145,  61  Pac.  782;  Montecito 
etc.  Co.  v.  Santa  Barbara,  144  Cal. 
578,  at  597,  77  Pac.  1113;  Watts  v. 
Spencer,  51  Or.  262,  ,)4  Pac.  39;  Union 
Mining  Go.  v.  Dangberg,  81  Fed.  173, 
saying  that  an  inteiiuption,  "however 
slight,"  prevents  prescription. 

20 'Cox  v.  Clough,  70  Cal.  345,  11 
Pac.  732;  Higuerra  v.  Del  Ponte  (Cal. 
App.),  88  Pac.  808;  Oregon  etc.  Co.  v. 
Allen  etc.  Co.,  41  Or.  209,  93  Am.  St. 
Rep.  701,  69  Pac.  455.  It  was  not 
necessary  in  order  to  make  plaintiff's 
adverse  use  of  an  irrigation  ditch 
across  defendant's  land  exclusive,  that 
all  other  persons  were  excluded  from 
using  the  ditch,  so  long  as  plaintiff's 
use  thereof  was  not  disturbed.  Silva 
v.  Hawn,  10  Cal.  App.  544,  102  Pac. 
952.  See  Perry  v.  Calkins  (Cal. 
1911),  113  Pac.  136.  ' 

21  Faull   v.   Cooke,    19   Or.  455,   20 
Am.  St.  Rep.  836,  26  Pac.  662. 

Where  the  owner  protested  whenever 
claimant  made  his  use  and  always 
sought  to  prevent  him,  no  prescriptive 
right  arises.  Union  Min.  Co.  v.  Dang- 
berg,  81  Fed.  73. 

22  Union  Mining  Co.  T.  Dangberg, 
81  Fed.  73. 


23  Authors  v.  Bryant,  22  Nev.  242, 
38  Pac.  439.     See,  also,  Wasatch  etc. 
Co.  v.  Fulton,  23  Utah,  466,  65  Pac. 
205. 

24  Bree  v.  Wheeler,  4  Cal.  App.  109, 
87  Pac.  255. 

25  Brattain  v.  Conn,  50  Or.  156,  91 
Pac.  458. 

1  Collins  v.  Gray,  3  Cal.  App.  723, 
86  Pac.  983.     But  see  contra,  Alta  Co. 
v.  Hancock,  85 '  Cal.  227,  20  Am.  St. 
Rep.  217,  24  Pac.  645. 

2  Montecito  etc.  Co.  v.  Santa  Bar- 
bara, 144  Cal.  578,  77  Pac.  1113,  com- 
menting  on   Cave   v.    Crafts,   53   Cal. 
135,  and  saying:   "It  is  true  that  in 
Cave  v.  Crafts,  53  Cal.  135,  it  is  said 
that  the  adverse  use  must  be  peace- 
able.    But  that  means  no  more,  as  the 
opinion  itself  explains,  quoting  Wood 
on  Nuisances,  than  that  it  must  be  un- 
interrupted.    Says    Wood:     'The    use 
must  also  be  open  and  as  of  right,  and 
also  peaceable,  for  if  there  is  any  act 
done  by  other  owners  that  operates  as 
an  interruption,  however  slight,  it  pre- 
vents the  acquisition  of  the  right  by 
such  use.'     If  the  possession  has  been 
uninterrupted,  of  necessity  it  has  been 
peaceable.     If  it  had  been  interrupted, 
of  necessity  it  has  not  been  peaceable. 
The  words  are  therefore  interchange- 
able and  synonymous  in  the  pleading 
of  prescriptive  title." 


632  (3d  ed.)     Pt.  III.     THE  LAW  OF  PRIOR  APPROPRIATION.       §  585 

affect  or  interrupt  his  adverse  use  as  against  a  stranger  to  such 
suit.3 

(3d  ed.) 

§  585.  Open;  Notorious. — These  terms,  "open"  and  "notori- 
ous," probably  represent  the  same  thing  in  this  connection.4  The 
use  must  be  open  and  "not  clam,"  or  clandestine,  hidden  or  con- 
cealed.5 This  will  hence  be  an  important  obstacle  to  claims  to 
percolating  water  by  adverse  use. 

Since  the  rules  of  adverse  use  are  punitive,  to  induce  watch- . 
fulness,  the  better  view  seems  to  be  that  it  is  sufficient  if  the  ad- 
verse use  was  open  and  without  attempt  at  concealment,6  but  a 
further  restriction  is  sometimes  held,  requiring  notice  of  the  use 
to  be  brought  home  to  the  owner.7  Knowledge  by  the  owner  of 
wrongful  use  of  pipes  underground  must  be  brought  home  to 
him.8  Between  tenants  in  common,  notice  is  held  necessary.9 
Notice  to  an  officer  of  a  corporation  is  notice  to  the  corporation 
in  this  respect.10  It  has  been  held  that  no  adverse  user  can  be 
initiated  until  the  owners  of  the  superior  right  are  deprived  of 
the  benefit  of  its  use  in  such  a  substantial  manner  as  to  notify 
them  that  their  rights  are  being  invaded.11 

(3d  ed.) 

§  586.     Claim  of  Right;  Color  of  Title. — The  occupation  must 

be  under  a  claim  of  right  by  the  adverse  claimant,  or,  as  it  is 

3  Montecito  etc.  Co.  v.  Santa  Bar-  knowledge  follows."     Silva  v.   Hawn, 
bara,  144  Cal.  578,  77  Pac.  1113.  10  Cal.  App.  544,  102  Pac.  955. 

4  Smith  v.  Duff    (1909),  39   Mont.  1  Churchill  v.  Louie,   135   Cal.  608, 
374,  133  Am.  St.  Rep.  582,  102  Pac.  67  Pae.  1052;   Britt  v.  Reed,  42  Or. 
981.  76,  70  Pac.  1029;  Clark  v.  Ashley,  34 

5  Abbott  v.  Pond,  142  Cal.  393,  76  Colo.    285,    82    Pac.    588;    Swank    v. 
Pac.  60;   Montecito  etc.  Co.  v.  Santa  Sweetwater  Co.,  15  Idaho,  353,  98  Pac. 
Barbara,  144  Cal.  578,  at  597,  77  Pac.  297;   Weidensteiner  v.   Mally   (1909), 
1113;    Anaheim   W.   Co.   v.   Ashcroft,  55  Wash.  79,  104  Pac.  143. 

153  Cal.  152,  94  Pac.  613   (use  by  a          8  Gray  v.  Cambridge,  189  Mass.  405, 

pump)  ;    Cal.    Code    Civ.    Proc.,    sees.  76  N.  E.  195,  2  L.  R'.  A.,  N.  S.,  977. 
322,   324;    Hume   v.   Rogue   Riv.   Co.,          9  Smith  v.  North  etc.  Co.,  16  Utah, 

51  Or.  238,  131  Am.  St.  Rep.  732,  83  194,  52  Pac.  283;  Beers  v.  Sharpe,  44 

Pac.  391,  92  Pac.  1072,  96  Pac.  865;  Or.  386,  75  Pac.  717. 
Curtis  v.  La  Grande  Co.,  20  Or.  34,  23  10  Montecito  etc.  Co.  v.  Santa  Bar- 

Pac.  808,  25  Pac.  378,  10  L.  R.  A.  484.  bara,  144  Cal.  578,  77  Pac.  1113. 

6  Gurnsey   v.    Antelope   etc.    Co.,    6  H  Wimer  v.  Simmons,  27  Or.  1,  50 
j  Cal.  App.  387,  92  Pac.  326.     (See  93  Am.  St.  Rep.  685,  39  Pac.  6;   North 

Am.  St.  Rep.  719,  note.)  Evans  v.  Powder  Co.  v.  Coughanour,  34  Or.  9, 
Lakeside  D.  Co.,  13  Cal.  App.  119,  108  54  Pac.  223 ;  Bowman  v.  Bowman,  35 
Pac.  1027.  "When  the  use  is  not  Or.  279,  57  Pac.  546;  Boyce  v.  Cup- 
secret  or  clandestine,  but  open,  visible  per,  37  Or.  256,  61  Pac.  642;  Watts 
and  notorious,  the  presumption  of  v.  Spencer,  51  Or.  262,  94  Pac.  39. 


§  580  Ch.  25.     LOSS  OF  EIGHT.  (3d  ed.)  633 

sometimes  put,  under  color  of  title.12  A  patent  from  the  govern- 
ment to  land  through  which  water  flows  or  percolates  does  not 
give  color  of  title  to  the  water  under  the  Colorado  doctrine  of  the 
effect  of  land  patents  on  water-rights.13  Claim  of  right  is  nega- 
tived by  proof  of  an  offer  to  purchase  or  rent.14  In  Oregon  on  a 
question  of  adverse  use  it  has  been  held  that  it  will  be  presumed 
that  the  use  was  under  claim  of  right  after  death  of  the  person 
initiating  the  use.15  A  use  under  a  void  deed  as  though  the  deed 
were  good  is  adverse  to  the  grantor,  though  not  necessarily  ad- 
verse to  the  right  of  strangers  to  the  deed,16  because  it  is  a  claim 
against  the  grantor  and  those  in  privity  with  him  only.  The 
claim  is  sufficient  if  by  visible  acts,  and  assertions  by  word  of 
mouth  are  unnecessary.17 

To  give  color  of  title,  the  adverse  claimant  may  have  begun 
his  use  in  any  character  whatsoever,  but  if  he  began  it  in  the 
character  of  an  appropriator,  pretending  to  have  a  valid  appro- 
priation, he  must  have  made  his  adverse  use  a  use  for  a  beneficial 
purpose.  Since  a  right  of  appropriation  cannot  be  held  without 
beneficial  use,  one  pretending  to  be  an  appropriator  has  no  color 
of  title  without  beneficial  use.  It  is  consequently  held  that  the 
adverse  use  must  be  for  a  beneficial  purpose ; 18  though  the  bene- 
ficial use  need  not  be  made  immediately,  a  reasonable  time  being 
allowed,  as  in  making  the  appropriation.19  Rental  and  sale  is  a 
beneficial  use.20 

See  Davis  v.  Chamberlain,  51  Or.  304,  322,  323,  but  see  Knight  v.  Cohen,  7 

98  Pac.  154;  Hough  v.  Porter,  51  Or.  Cal.  App.  43,  93  Pac.  396.     See  Briggs 

318,  95  Pac.  732,  98  Pac.  1083,   102  v.  Avary,  46  Tex.  Civ.  App.  488,  106 

Pac.  728.  S.  W.  904. 

12  Montecito  etc.  Co.  v.  Santa  Bar-  17  Gurnsey  v.  Antelope  etc.  Co.,  6 
bara,  144  Cal.  578,  77  Pae.  1113;  Win-  Cal.  App.  387,  92  Pac.  326;  Knight  v. 
ter  v.  Winter,  8  Nev.  129;  Brossard  v.  Cohen,  6  Cal.  App.  43,  93  Pac.  396. 
Morgan,  7  Idaho,  215,  61  Pac.  1031;          18  Alta  etc.  Co.  v.  Hancock,  85  Cal. 
Center  Creek  etc.   Co.  v.  Lindsay,  21  219,   20    Am.   St.    Eep.    217,   24   Pac. 
Utah,  192,  60  Pac.  559;  American  etc.  645;  Senior  v.  Anderson,  130  Cal.  290, 
Co.  v.  Bradford,  27  Cal.  360,  15  Morr.  at  297,  62  Pac.  563;  La  very  v.  Arnold, 
Min.   Rep.    190;    Davies   v.    Angel,    8  36  Or.  84,  57  Pac.  907,  58  Pac.  524; 
Cal.  App.  305,  96  Pac.  909.  Oregon  etc.  Co.  v.  Allen,  41  Or.  209, 

13  Clark  v.  Ashley,  34  Colo.  285,  82  69  Pac.  455,  see  93  Am.  St.  Eep.  701, 
Pac.  588.  note. 

14  Jensen  v.  Hunter  (Cal.),  41  Pac.          i»  Oregon  etc.  Co.  v.  Allen  etc.  Co., 
17.     But     see     Logan     v.     Guichard  41  Or.  209,  93  Am.  St.  Eep.  701,  69 
(Cal.  1911),  114  Pac.  989.  Pac.  455. 

15  Bauers  v.   Bull,   46  Or.   60,   78          20  Montecito  etc.  Co.  v.  Santa  Bar- 
Pac.  757.  bara,  144  Cal.  578,  77  Pac.  1113.     As 

16  Eose  v.  Mesmer,  142  Cal.  322,  75  to  what  is  beneficial  use,  see  supra, 
Pac.  905  j  Cal.  Code  Civ.  Proc.,  sees.  sees.  378,  481. 


634  (3ded.)     Pt.  III.     THE  LAW   OF  PRIOE  APPROPRIATION.       §587 

While  the  above  decisions  requiring  beneficial  use  on  the  part 
of  the  adverse  claimant  used  general  language  applying  to  all, 
yet  the  "rule  would  seem  not  to  apply  to  an  adverse  claimant  not 
pretending  to  be  an  appropriator,  and  is  hence  doubted  as  apply- 
ing to  adverse  claimants  in  other  character.21  For  example,  a 
riparian  proprietor  (in  jurisdiction  recognizing  riparian  rights) 
need  not  make  beneficial  use  of  the  water  to  give  color  of  title, 
and  there  would  be  no  reason  why  one  claiming  adversely  in  that 
character  need  use  the  water  beneficially.22 

An  adverse  claimant  in  the  character  of  an  appropriator  has, 
at  the  same  time,  color  of  title  without  posting  a  notice  of  appro- 
priation, since  his  actual  diversion  is  sufficient  color  of  title  as 
appropriator  by  actual  diversion.23  Hence,  posting  a  notice, 
while  valuable  evidence,  is  not  necessary  to  support  a  right  by 
adverse  use.24  The  place  of  use  is  also  immaterial.25 

Satisfactory  proof  of  a  continuous,  open,  notorious  and  uninter- 
rupted use  of  the  waters  for  the  statutory  period,  and  of  such  a 
character  as  to  unquestionably  indicate  that  the  use  was  being  ex- 
ercised in  hostility  to  the  right  of  any  person  to  interfere  with  its 
exercise  is  sufficient  proof  that  they  claimed  a  right  to  use  it.1 

(3d  ed.) 

§  587.  Hostile  to  Owner;  Permission. — The  use  must  be  hos- 
tile to  the  owner ;  2  hence  permissive  use  is  not  adverse.  If  there 
is  permission,  the  use,  however  long  continued,  cannot  ripen  into 
a  right  by  prescription.3 

21  93  Am.  St.  Rep.  729,  note.  2  Hayes    v.    Martin,    45    Cal.    563 ; 

22  A  superior  court  decision  in  Call-  McManus   v.    O'Sullivan,    48    Cal.    7; 
f ornia    somewhat    to    this    effect    was  Francoeur  v.  Newhouse,  43  Fed.  238 ; 
rendered  by  Judge  J.  M.  Seawell,  sit-  Rhoades  v.  Barnes,  54  Wash.  145,  102 
ting  in  Madera  County,  in  the  case  of  Pac.  884. 

California    Pastoral    Co.    v.    Madera  3  Ball  v.  Kehl,  95  Cal.  606,  30  Pac. 

Canal  Co.,  1906.  780;  Jensen  v.  Hunter  (Cal.),  41  Pac. 

23  Supra,  sec.  364.  17;  Oliver  v.  Burnett  (1909),  10  Cal. 

24  Alta  etc.  Co.  v.  Hancock,  85  Cal.  App.    403,    102    Pac.    223;    Davis    v. 
219,  20  Am.  St.  Rep.  217,  24  Pac.  645;  Martin,   157   Cal.    657,    108   Pac.    866 
Frederick  v.  Dickey,  91   Cal.  360,  27  (fifty   years)  ;    Jobling   v.    Tuttle,   75 
Pac.  742.  Kan.  351,  89  Pac.  699,  9  L.  R.  A.,  N. 

25  Southern    Cal.    etc.    Co.    v.    Wil-  S.,     960;     Yeager    v.     Woodruff,     17 
shire,  144  Cal.  68,  77  Pac.  767;  Meng  Utah,    361,    53    Pac.    1045;     Hall    v. 
v.  Coffey,   67  Xeb.   500,   108  Am.   St.  Blackman,  8  Idaho,  272,  68  Pac.  19; 
Rep.  697,  93  N.  W.  715,  60  L.  R.  A.  Anderson  v.   Bassman,   140   Fed.   25; 
910.  Knight  v.  Cohen,  7  Cal.  App.  43,  93 

i  Anaheim     W.     Co.     v.     Ashcroft  Pac.   396;   Watts   v.   Spencer,   51   Or. 

(1908),   153   Cal.    152,   94   Pac.   613;  262,  94  Pac.  39;  Metcalfe  v.  Faucher 

Evans    v.    Lakeside    D.    Co.,    13    Cal.  (Tex.    Civ.    App.),    99    S.    W.    1038; 

App.   119,   108  Pac.   1C27.  Rhoades    v.    Barnes,    supra;    Weiden- 


§588  Ch.  25.     LOSS  OF  EIGHT.  (3d  ed.)  635 

Who  has  the  burden  of  proof  where  permission  is  set  up? 
Upon  the  ultimate  issue  of  adverse  use  the  adverse  claimant  has 
the  burden  of  proof ; 4  but  it  is  held  that  use  otherwise  falling 
within  the  requirements  will  make  a  prima  facie  title  by  adverse 
use  and  will  raise  a  presumption  that  the  use  was  not  permissive ; 
thereby  putting  upon  the  party  asserting  that  there  was  permis- 
sion, the  burden  of  proving  it.  It  is  said  in  one  case:5  "Where 
an  open  and  uninterrupted  use  of  an  easement  for  a  sufficient 
length  of  time  to  create  the  presumption  of  a  grant  is  shown,  if 
the  other  party  relies  on  the  fact  that  these  acts  or  any  part  of 
them  were  permissive,  it  is  incumbent  on  such  party,  by  sufficient 
proof,  to  rebut  such  presumption  of  a  nonappearing  grant ;  other- 
wise the  presumption  stands  as  sufficient  proof,  and  establishes 
the  right."6 

The  case  quoted  in  the  foregoing  note  would,  however,  also  ap- 
ply the  rule  to  any  element  in  opposition  to  the  adverse  right, 
thus  putting  upon  owners  the  duty  of  disproving  adverse  claims 
instead  of  requiring  the  trespasser  to  "make  good."  It  has  been 
said  that  a  man's  title  should  count  for  something  in  controversies 
of  this  character.7 

(3d  ed.) 

§  588.  Invasion  of  Right. — The  use  must  "substantially  inter- 
fere" with  the  property  of  the  owner;8  there  must  be  an  actual 
invasion  of  his  property.9  There  must  have  been  such  a  use  of 
the  water,  and  such  damage,  as  would  raise  a  presumption  that 

steiner    v.    Mally    (1909),    55    Wash.  78   Pac.    757;    Horbach   v.   Boyd,    64 

79,   104  Pac.   143,  citing  this  section  Neb.  129,  89  N.  W.  644. 

(2d  ed.,  see.  248).  7  Jensen  v.  Hunter  (Cal.),  41  Pac. 

4  Supra    sec.  579.  17-     Not  officially  reported. 

5  Fleming  v.  Howard,  150  Cal.  28,  *  <*****  v"  Wright>  49  Or'  609>  91 

87     PQ/>      QfiS  -TdC.    <:00. 

»  American  etc.  Co.  v.  Bradford,  27 

6  Accord,  Gurnsey  v.  Antelope  Co.,  6       Cal.    360,    15    Morr.    Min.    Rep.    190 ; 
Cal.  App.  387,  92  Pac.  326;  Knight  v.       Qneto  v.  Eestano,  78  Cal.  374,  20  Pac. 
Cohen,  7  Cal.  App.  43,  93  Pac.  396.  743 .    paige   v.   Rocky   Ford   etc     Co  ^ 

"While  an  adverse  right  cannot  grow  83  Cal.  84,  21  Pac.  1102,  23  Pac.  875; 

out  of  mere  permissive  enjoyment,  the  Hudson  v.  Dailey,   156  Cal.   617,   105 

burden    of    proving    possession    thus  Pac.     748;     Perry    v.     Calkins     (Cal. 

claimed  to  have  been  held  by  such  per-  1911),    113     Pac.     136;     Rhoades    v. 

mission  or  subserviency  is  cast  upon  Barnes    (1909),    54    Wash.    145,    102 

the   party  attempting  to   defeat  such  Pac.  884;  Ison  v.  Sturgill   (Or.),  109 

claim."     Gardner   v.    Wright,    49    Or.  Pac.    579;    Carson   v.   Hayes,   39.   Or. 

609,  91  Pac.   286,  citing  Coventon  v.  97;  65  Pac.  814;  Wimer  v.  Simmons 

Seufert,    23    Or.    548,    32    Pac.    508;  27  Or.   18,  50   Am.   St.   Rep.   685,  39 

Rowland  v.  Williams,  23  Or.  515,  32  Pac.  6;  Huston  v.  Bybee,  17  Or.  140 

PEC.  402;   Bauers  v.  Bull,  46  Or.  60,  20  Pae.  51,  2  L.  R.  A.  568. 


636  (3ded.)     Pt.  III.     THE  LAW  OF  PRIOR  APPROPRIATION.       §588 

complainant  would  not  have  submitted  to  it  unless  the  respond- 
ents had  acquired  the  right  to  so  use  it.10  The  burden  is  on  the 
adverse  claimant  to  show  such  invasion.11 

There  are  numerous  cases  holding  that  this  does  not  mean  that 
actual  damage  as  measured  in  money  need  be  occasioned  by  the 
adverse  claimant,  however,  since  a  right  of  property  is  invaded 
by  any  acts  inconsistent  with  it  (injuria  sine  damno),  and  the 
use  may  be  adverse,  irrespective  of  the  amount  of  damage,  how- 
ever small  that  may  be  ("nominal  damage") ;  even  if  there  is  no 
actual  money  damage  at  all.12  In  this  connection,  it  is  neces- 
sary, however,  to  refer  to  other  sections  where  the  application  of 
this  doctrine  is  limited  considerably  by  the  modern  tendency  of 
the  law.  The  cases  just  cited  considered  the  appropriation 
primarily  measured  by  capacity  of  ditch,  and  not  by  befceficiaj. 
use  short  of  abandonment.  By  statute  this  is  now  done  away 
with  after  a  fixed  period  of  nonuse,  and  even  within  the  period 
injunctions  are  largely  refused  unless  the  plaintiff  can  show 
actual  damage  to  his  use  at  the  time  of  suit.  The  law  upon  this 
matter  is  in  a  transitionary  state,  and  presents  some  confusion.13 
The  usual  statement  in  the  decisions  to-day  is  that  no  prescrip- 
tion can  arise  under  the  system  of  appropriation  without  dam- 
age to  actual  use,  nor  if  water  is  taken  when  the  owner  has  no 
need  for  it,14  because  under  such  circumstances  the  water  is 

10  Union  Mining  Co.  v.  Dangberg,  Gal.    456,    26    Pac.    968;    Spargur   v. 
81   Fed.   73,   citing  Dick  v.   Bird,   14  Hurd,  90  Cal.  221,  27  Pac.  198;  Mott 
Nev.   161;   Dick  v.  Caldwell,  14  Nev.  v.   Ewing,   90   Cal.   231,  27   Pac.   194. 
167;  Boynton  v.  Longley,  19  Nev.  69,  See  infra,  sec.   642.       Compare  cases 
76,  3  Am.  St.  Rep.  781,  6  Pac.  437;  cited  infra,  sec.  815  et  seq.,  regarding 
Water  Co.  v.   Crary,  25   Cal.   504,   85  riparian  rights. 

Am.  Dec.  145;  Grigsby  v.  Water  Co.,  13  See   cross-references,   supra,   sec. 

40  Cal.  396,  406;  Anaheim  Water  Co.  139. 

v.  Semi-Tropic  Water  Co.,  64  Cal.  185,  14  E.  g.,  Smith  v.  Duff   (1909),  39 

30  Pac.  623;   Alta  etc.  Water  Co.  v.  Mont.  374,  133  Am.  St.  Rep.  582,  102 

Hancock,  85  Cal.  219,  20  Am.  St.  Rep.  Pac.  981;  Ison  v.  Sturgill   (Or.),  109 

217,   24  Pac.   645;    Last   Chance   etc.  Pac.  579;   Miller  v.  Wheeler   (1909), 

Ditch  Co.  v.  Heilbron,  86  Cal.  1,  12,  54     Wash.    429,    103     Pac.    641,    23 

26    Pae.    523;    Black's    Pomeroy    on  L.    R.    A.,    N.    S.,    1065;    Morris    v. 

Water   Rights,    sec.    132;    Kinney   on  Bean  (Mont.),  146  Fed.  433;  affirmed 

Irrigation,  sees.  293,  294,  297.  in  Bean  v.  Morris,  159  Fed.  651,  86  C. 

11  Ison  v.  Sturgill   (Or.),  109  Pae.  C.  A.  519;  Jobling  v.  Tuttle,  75  Kan. 
579.  351,  89  Pac.   699,  9  L.  R.  A.,  N.  S., 

12  Moore   v.    Clear   etc.   Works,    68  960;  Egan  v.  Estrada,  6  Ariz.  248,  56 
Cal.  146,  8  Pac.  816;  Stanford  v.  Felt,  Pac.    721;    Meng   v.   Coffey,    67   Neb. 
71  Cal.  249,  16  Pac.  900;  Heilbron  v.  500,  108  Am.  St.  Rep.  697,  93  N.  W. 
Fowler  etc.  Canal  Co.,  75  Cal.  426,  7  713,    60    L.    R.    A.    910;     Watts    v. 
Am.  St.  Rep.  183,  17  Pac.  535;   Con-  Spencer,  51  Or.  262,  94  Pac.  39;  Ana- 
kling  v.  Pacific  etc.  Co.,  87  Cal.  296,  heim  W.   Co.   v.   Semi-Tropic   Co.,   64 
25  Pae.  399;  Walker  v.  Emerson,  89  Cal.    185,    192,    30    Pac.    623;    Last 


§  588  Ch.  25.    LOSS  OF  EIGHT.  (3d  ed.)  637 

open  to  appropriation,  and  prescription  is  unnecessary  to  give  a 
right.15 

Between  tenants  in  common,  before  possession  of  one,  or  a  sale 
by  him,  becomes  adverse  to  the  others,  there  must  be  an  actual 
ouster  and  notice  or  knowledge  of  the  adverse  intention.18 

There  can  be  no  adverse  use  by  lower  claimants  against  those 
above,  since  a  use  below  can  in  no  way  interfere  with  the  flow  above 
(omitting  cases  of  "backing"  the  water  and  flooding)  ;  it  is  no 
possible  invasion  of  the  right  of  the  upper  owner.  Lower  use  is 
not  adverse.17  Nor  is  the  use  of  a  surplus  above  the  appropriate!' 
adverse  to  him,  since  it  leaves  the  amount  to  which  he  is  entitled 
uninvaded.18  No  right  by  adverse  use  can  hence  result  from  use 
below,  or  from  use  of  surplus  above.19 

There  can  be  no  adverse  use  (between  appropriators)  for  the 
same  reason,  where  during  the  prescriptive  period,  there  has  been 
water  enough  for  all  users.20  (Quaere,  whether  this  applies  to 
adverse  use  against  a  riparian  proprietor,  the  invasion  of  whose 
right  does  not  depend  upon  the  fact  that  he  has  enough  for  his 
present  use.)  "A  mere  scrambling  possession  of  the  water  or  the 
obtaining  of  it  by  force  or  fraud21  gives  no  prescriptive  right; 
nor  can  this  right  be  acquired  if,  during  the  time  in  which  such 
right  is  claimed  to  have  accrued,  there  has  been  an  abundant  sup- 
ply of  water  in  the  stream  or  river  for  other  claimants. "  22  In 

Chance  Co.  v.  Heilbron,  86  Cal.  20,  26  18  Fifield     v.     Spring     Valley     etc. 

Pac.   523;    Featherman   v.  Hennessey  Works,   130   Cal.   552,   62   Pac.    1054; 

(Mont.  1911),  113  Pac.  751.  Faulkner  v.  Rondoni,  104  Cal.  140,  37 

15  Supra,  sec.  481,  beneficial  use.  Pac.  883. 

16  Smith  v.  North  Canyon  etc.  Co.,  19  See,   also,  93   Am.   St.  Rep.   717, 
16  Utah,  194,  52  Pac.  283;   Beers  v.  note;    Talbott   v.    Butte   etc.    Co.,    29 
Sharpe,    44    Or.    386,    75    Pac.    717;  Mont.   17,   73   Pac.   1111;   Norman  v. 
Oliver  v.  Burnett  -(1909),  10  Cal.  App.  Corbley,  32  Mont.  195,  79  Pac.  1059. 
403,  102  Pac.  223.  20  Smith  v.  Duff   (1909),  39  Mont. 

17  Hargrave  v.   Cook,   108   Cal.   72,  374,  133  Am.  St.  Rep.  582,  102  Pac. 
41  Pac.  18,  30  L.  R.  A.  390 ;  Bathgate  981;    Miller   v.    Wheeler    (1909),    54 
v.   Irvine,   126   Cal.   135,   77   Am.   St.  Wash.  429,  103  Pac.  641;   Jobling  v. 
Rep.  158,  58  Pac.  442;  Cave  v.  Tyler,  Tuttle,   75  Kan.   351,  89  Pac.   699,   9 
133  Cal.  566,  65  Pac.  1089;   Davis  v.  L.  R.  A.,  N.  S.,  960;  Egan  v.  Estrada, 
Martin,  157   Cal.   657,  108   Pac.   866;  6   Ariz.    248,   56   Pac.   721;    Meng   v. 
Perry  v.  Calkins  (Cal.),  113  Pac.  136;  Coffey,  67  Neb.  500,  108  Am.  St.  Rep. 
Harrington  v.   Demarris.,   46   Or.   Ill,  697,  93  N.  W.  713,  60  L.  R.  A.  910; 
77  Pac.  605,  82  Pac.  14,  1  L.  R.  A.,  Watts  v.  Spencer,  51  Or.  262,  94  Pac. 
N.  S.,  756;  North  Powder  Co.  v.  Coug-  39;    Anaheim  W.   Co.  v.   Semi-Tropic 
hanour,  34  Or.  9,  54  Pac.  223;   Bow-  Co.,  64  Cal.   185,   192,   30   Pac.   623; 
man  v.  Bowman,  35  Or.  279,  57  Pac.  Last  Chance  Co.  v.  Heilbron,  86  Cal. 
546 ;  Beers  v.  Sharpe,  44  Or.  386,  75  20,  26  Pac.  523. 

Pac.  719 ;  Wimer  v.  Simmons,  27  Or.  21"  Sed  qu. 

1,  50  Am.   St.   Rep.   685,   39   Pac.   6;  22  Union  etc.   Co.  v.  Dangberg,   81 

Hallett   v.    Davis    (1909),    54   Wash.  Fed.  73. 

326,   103   Pac.   423. 


638  (3ded.)     Pt.  III.     THE  LAW  OF  PRIOR  APPROPRIATION.       §589 

Morris  v.  Bean  23  it  is  said  that  the  aid  of  the  statute  of  limitations 
has  occasionally  been  invoked  with  success,  but  not  in  cases  of  a 
scrambling  possession,  and  the  burden  is  upon  the  adverse  claimant 
to  bring  himself  within  the  statute,  and  the  proof  must  be  clear 
before  a  prescriptive  right  will  be  enforced. 

To  constitute  adverse  use  by  a  tenant  against  his  landlord  there 
must  first  be  an  open  repudiation  of  the  tenancy  by  the  tenant,  for 
otherwise  he  will  be  estopped  to  deny  his  landlord's  title,  and  his 
holding  will  not  be  adverse  until  such  open  repudiation  of  the 
lease  has  been  made.24 

(3d  ed.) 

§  589.  Chance  to  Prevent. — There  must  be  a  chance  for  the 
true  owner  to  prevent  the  use  by  the  claimant,  either  by  physical 
force  or  legal  proceedings.25  "In  order  to  obtain  a  right  by  pre- 
scription it  is  necessary  that  during  the  prescriptive  period  an 
action  could  have  been  maintained  by  the  party  against  whom  the 
claim  is  made. ' '  *  Hence,  another  reason  why  there  can  be  no 
right  by  adverse  use  from  use  below,  or  of  the  surplus  above,  the 
appropriator. 

As  there  was  no  right  of  action  for  loss  of  percolating  water 
under  the  old  rule,  no  right  to  it  could  be  acquired  by  adverse  use, 
under  the  old  rule.2  No  prescriptive  right  could  be  had,  since  no 
action  would  lie  against  the  adverse  claimant  to  recover  the  water 
during  the  prescriptive  period.3  Under  the  new  rule  giving  a  right 
of  action  in  some  cases,  a  prescriptive  right  may  arise.4 

23  (Mont.),  146  Fed.  433.  Water  Co.  v.  Richardson,  72  Cal.  598, 

24  "When  a  tenancy  is  once  shown  to       14  Pac.  379 ;  Fogarty  v.  Fogarty,  129 
exist,  in  order   to   set  the   statute   of      Cal.  46,  61  Pac.  570. 

limitations  running  in  favor  of  the  l  Chessman  v.  Hale,  31  Mont.  577, 
tenant  desiring  to  avail  himself  of  it,  79  Pac.  256,  68  L.  R.  A.  410,  3  Ann. 
to  acquire  title  by  adverse  possession  Gas.  1038;  accord,  Perry  v.  Calkins 
he  must  openly  and  explicitly  disclaim  (Cal.  1911),  113  Pac.  136;  Smith  v. 
and  disavow  any  and  all  holding  under  Duff  (1909),  39  Mont.  374,  133  Am. 
his  former  landlord;  and,  further,  he  St.  Rep.  582,  102  Pac.  981;  Davis  v. 
must  unreservedly  and  steadily  assert  Chamberlain,  51  Or.  304,  98  Pac.  154; 
that  he  himself  is  the  owner  of  the  North  Powder  Co.  v.  Coughanour,  34 
true  title,  all  of  which  must  be  brought  Or.  9,  54  Pac.  223 ;  Wimer  v.  Sim- 
home  to  the  knowledge  of  the  rightful  mons,  27  Or.  1,  50  Am.  St.  Rep.  685, 
owner."  Coquelle  etc.  Co.  v.  Johnson,  39  Pac.  6;  Boyce  v.  Cupper,  37  Or. 
52  Or.  549,  132  Am.  St.  Rep.  716,  98  256,  61  Pac.  642;  Anderson  v.  Bass- 
Pac.  132,  citing  Nessley  v.  Ladd,  29  man  (C.  C.),  140  Fed.  10. 
Or.  354,  45  Pac.  904.  Compare  Swift  2  Hanson  v.  McCue,  42  Cal.  303,  10 
v.  Goodrich,  70  Cal.  103,  1  Pac.  561.  Am.  Rep.  299. 

25  Hanson   v.   McCue,   42   Cal..  303,          3  Crescent    etc.    Co.    v.    Silver    etc. 
10   Am.   Rep.   299;    Montecito   etc.   v.  Co.,   17   Utah,   444,   70   Am.   St.   Rep. 
Santa  Barbara,  144  Cal.  578,  at  597,  810,  54  Pac.  244. 

77  Pac.  1113;  but  see  Alhambra  etc.          *  Infra,  sec.  1170. 


§590  Ch.  25.     LOSS  OF  RIGHT.  (3d  ed.)  639 

(3d  ed.) 

§  590.  Payment  of  Taxes. — Statutes  usually  require  the  claim- 
ant to  real  estate  by  adverse  use  to  have  paid  the  taxes  thereon 
during  the  prescriptive  period.5  This  applies  also  to  water-rights, 
as  they  are  real  estate.6  In  construing  this  rule,  the  adverse  claim- 
ant is  favored.  If  no  taxes  were  assessed,  the  rule  is  inoperative.7 
The  burden  of  proof  that  taxes  were  assessed,  and  also  that  they 
•were  not  paid,  is  not  on  the  adverse  claimant,  but  on  the  owner.8 
If  the  claimant  used  the  water  upon  other  land  owned  by  him, 
and  paid  the  taxes  assessed  upon  that  land  generally,  that  fulfills 
the  requisite,  though  there  was  no  separate  or  specific  payment  of 
taxes  for  the  water,  there  having  been  no  separate  assessment 
thereof.9  Where  an  irrigation  ditch  across  defendant's  land  which 
plaintiff  claimed  the  use  of  by  adverse  user  was  not  assessed  apart 
from  the  land,  or  at  all,  payment  of  taxes  by  plaintiff  was  not 
necessary  to  establish  adverse  user ;  and  since  an  easement  need  not 
be  assessed  apart  from  the  land,  the  burden  was  on  defendant  to 
show  that  the  ditch  was  so  assessed  if  he  claimed  that  payment  of 
taxes  by  plaintiff  was  necessary  to  establish  adverse  user.10  If  the 
owner  pays  the  taxes  on  the  last  year  of  the  prescriptive  period, 
this  stops  the  running  of  prescription,  although  the  trespasser  paid 
during  the  other  four  years,  and  the  assessment  was  made  in  the 
fifth  year  also.11  If  the  owner  pays  first,  a  duplicate  payment 
by  the  trespasser  is  of  no  avail  to  the  latter.12 

The  requirement  that  taxes  be  paid  is  purely  statutory,  and  does 
not  exist  at  common  law.13 

5  E.  g.,  Cal.  Code  Civ.  Pfoe.,  see.  13  "it  appears  that  this  ditch  has 
325;   Colo.  M.  A.  S.,  sec.  2923;   Ariz.  never   been   assessed   separately    from 
Rev.   Stats.    1901,   sec.   2935   et  seq.;  the  land,  but  that  the  Puente  Rancho 
Idaho  Rev.  Stats.  1887,  sec.  4043.  was  always  assessed  wholly  to  Baldwin 

6  Frederick  v.  Dickey,  91  Cal.  358,  and  that  he  paid  the  taxes  thereon.    It 
27  Pac.  742 ;  Swank  v.  Sweetwater  Irr.  is    urged,    in    view    of    these    circum- 
Co.,  15  Idaho,  353,  98  Pac.  297.  stances,  that  under  section  325,  Code 

7  Heilbron    v.    Last    Chance    Water  of  Civil  Procedure,  title  by  preserip- 
etc.    Co.,    75    Cal.    117,    17    Pac.    65;  tion  could  not  have  been  acquired  by 
Oneto  v.  Restano,  78  Cal.  374,  20  Pac.  plaintiffs     and     cross-defendants.     A 
743 ;   Hesperia  etc.   Co.  v.  Rogers,   83  sufficient  answer  to  this  claim  is  that 
Cal.  10,  17  Am.  St.  Rep.  202,  23  Pac.  their  title  by  prescription  was  complete 
196.  prior  to  the  amendment  of  section  325, 

8  Ibid.  Code  of  Civil  Procedure,  making  the 
8  Coonradt  v.  Hill,  79  Cal.  587,  21      payment  of  taxes   an  element  of  ad- 

Pac.  1099.  verse  possession,  which  amendment  was  • 

10  Silva  v.  Hawn,  10  Cal.  App.  544,      enacted  in  1878,  and  that  such.amend- 
102  Pac.  952.  ment    therefore    has    no   application." 

11  Glowner  v.  Alvarez,  10  Cal.  App.      Strong  v.  Baldwin,  154  Cal.  150,  129 
194,  101  Pac.  432.  Am.  St.  Rep.  149,  97  Pnc.  178,  citing 

12  Cavanaugh    v.    Jackson,    99  Cal.      Lucas    v.   Provines,   130  Cal.   270,   62 
672,  at  675,  676,  34  Pac.  509.  Pac.  509. 


640  (3ded.)     Pt.  III.     THE  LAW  OF  PEIOE  APPROPRIATION.       §591 
(3d  e<l.) 

§  591.  Against  the  United  States  or  the  State. — There  can  be 
no  adverse  use  against  the  United  States,  and  hence  if  the  title 
to  the  water  or  land  involved  was  in  the  government  any  part  of 
the  five  years,  no  prescriptive  right  can  arise.14  And,  also,  conse- 
quently, the  acquisition  of  a  right  by  appropriation  and  one  by 
adverse  use  stand  on  entirely  different  footings.15  This,  however, 
has  reference  only  to  the  point  of  diversion  or  to  the  land  through 
which  the  stream  or  ditch  runs,  and  has  no  reference  to  the  place 
of  the  adverse  use.  Title  to  the  place  of  use  is  immaterial,  and 
the  use  may  be  made  upon  public  land  and  nevertheless  be  adverse 
to  private  rights  in  the  water.16 

Against  the  State  prescription  is  usually  allowed  by  statute,  but 
under  a -longer  time  than  against  a  private  party.  As  against  the 
State  of  California,  prescriptions  may  be  acquired  by  ten  years' 
adverse  use.17 

(3d  ed.) 

§  592.  Conclusion. — In  one  case  it  is  said  that  a  man's  title 
should  count  for  something  in  controversies  of  this  character ; 18 
and  in  another,  "From  these  observations  it  will  be  seen  that  it  is 
difficult  to  obtain  a  prescriptive  right  to  the  use  of  water  under 
our  law  as  it  now  stands."  This  remark  was  made  by  the  Idaho 
court,19  after  setting  forth  requirements  similar  to  those  given 
above;  and  the  result  in  the  many  cases  where  a  right  by  adverse 
use  was  contended  for  substantiates  this  conclusion. 

Reference  should  also  be  made  to  the  sections  upon  prescription 
tinder  the  law  of  riparian  rights  and  the  law  of  percolating  water.20 


D.    ESTOPPEL. 
(3d  ed.) 

§  593.    Elements  of  Estoppel  in  Pais. — The  elements  requisite 
for  estoppel  are  substantially  those  necessary  to  found  an  action 

14  Mathews  v.  Ferrea,  45  Cal.  51;  shire,  144  Cal.  68,  77  Pac.  767;  Meng 

Wilkins  v.  McCue,  46  Cal.  656 ;  Jatunn  v.  Coffey,  67  Neb.  500,  108  Am.  St. 

v.   Smith,   95   Cal.   154,   30   Pac.  200;  Rep.  697,  93  N.  W.  715,  60  L.  R.  A. 

Smith  v.   Hawkins,   110   Cal.   122,   42  910. 

Pac.  453 ;  Vansickle  v.  Haines,  7  Nev.  17  Code  Civ.  Proc.,  315 ;  Civ.  Code, 

249;  Wattier  v.  Miller,  11  Or.  329,  8  sec.  1007. 

Pac.  35*4;  Union  Min.  Co.  v.  Ferris,  2  18  Jensen  v.  Hunter  (Cal.),  41  Pac. 

Saw.    179,    Fed.    Gas.    No.    14,371,    8  17. 
Morr.  Min.  Rep.  90.  39  Hall  v.  Blackman,  8  Idaho,  272, 

is  Supra,  sec.  579.  68  Pac.  19. 

16  Southern    Cal.    etc.    Co.    v.    Wil-          20  Infra,  sees.  863,  1170. 


§  593  Ch.  25.     LOSS  OF  EIGHT.  (3d  ed.)  641 

for  deceit,  with  the  exception  of  the  element  of  knowledge  of 
falsity.  In  deceit  there  must  be  some  statement,  or  conduct  im- 
plying a  statement,  which  is  untrue,  intending  the  other  party  to 
act  and  he  does  act  thereon,  damage,  and  knowledge  by  the  party 
making  the  statement  that  it  is  untrue.  The  omission  of  the  last 
element  from  estoppel  is  the  only  substantial  difference.  This  is 
substantially  set  forth  in  the  following  passage  from  Lux  v.  Hag- 
gin  : 21  "  There  are  estoppels  in  pais,  as  where  a  defendant  is  in- 
duced to  act  by  the  declarations  or  conduct  of  a  plaintiff,  which 
are  a  defense  both  at  law  and  equity.  Here  we  cannot  discover 
the  elements  of  such  an  estoppel.  The  defendant  has  acted  with 
full  knowledge  of  all  the  facts,  and,  as  must  be  presumed,  with 
full  knowledge  of  the  law  controlling  the  rights  of  the  parties. 
To  constitute  the  estoppel  the  party  claiming  the  benefit  of  it 
must  be  destitute  of  knowledge  of  his  own  legal  rights,  and  of  the 
means  of  acquiring  such  knowledge.  To  constitute  such  an 
estoppel  it  must  also  be  shown  that  the  person  sought  to  be 
estopped  has  made  an  admission  or  done  an  act  with  the  intention 
of  influencing  the  conduct  of  another,  or  that  he  had  reason  to 
believe  would  influence  his  conduct,  inconsistent  with  the  evi- 
dence he  proposes  to  give,  or  the  title  he  proposes  to  set  up; 
that  the  other  party  has  acted  upon,  or  been  influenced  by,  such 
act  or  declaration ;  that  the  party  so  influenced  will  be  prejudiced 
by  allowing  the  truth  of  the  admission  to  be  disproved.  In  the 
case  before  us  the  fact  relied  on  as  proving  the  estoppel  is  that 
plaintiff  had  knowledge  of  the  expensive  canals  and  other  works 
of  defendant  while  they  were  in  progress,  and  did  not  object  to 
them.  The  bare  fact  that  ditches,  etc.,  were  constructed  with 
the  knowledge  of  the  plaintiffs,  though  at  great  expense,  without 
objection  by  plaintiffs  is  not  sufficient  to  constitute  (such)  an 
estoppel."22 

21  69  Cal.  255,  10  Pac.  674.  application  of  this  principle  with  re- 

22  In  Biddle  Boggs  v.  Merced  Min.   .   spect  to  the  title  of  -property  it  must 
Co.,  14  Cal.  279,  10  Morr.  Min,  Eep.  appear:  First,  that  the  party  making 
334,  a  leading  case  upon  the  subject  the  admission  by  his   declarations  or 
of    estoppel,    Judge    Field    said:    "It  conduct  was  apprised  of  the  true  state 
is  undoubtedly  true  that  a  party  will,  of  his  own  title;  second,  that  he  made 
in  many  instances,  be  concluded  by  his  the  admission  with  the  express  inten- 
declarations  or  conduct,  which  have  in-  tion  to  deceive,  or  with  such  careless 
fluenced  the  conduct  of  another  to  his  and  culpable  negligence  as  to  amount 
injury.     The    party    is    said    in    such  to    culpable     fraud;     third,    that    the 
cases  to  be  estopped  from  denying  the  other  party  was  not  only  destitute  of 
truth  of  his  admissions.     But  to  the  all  knowledge  of  the  true  state  of  the 

Water  Rights— 41 


642  (3ded.)     Pt.  III.     THE  LAW  OP  PRIOR  APPROPRIATION.       §594 

The  fact  that  a  subsequent  appropriates  employed  the  prior 
appropriator  (plaintiff)  in  the  construction  of  its  works  does  not 
alone  raise  an  estoppel  against  plaintiff,23  though  it  is  otherwise 
where  plaintiff  gave  his  actual  consent  to  the  works.24  In  one 
case25  it  was  said:  "The  evidence  shows  that  the  plaintiff  was 
employed  by  the  defendant  about  its  mill;  that  he  knew  it  was 
being  constructed  to  reduce  ores  and  made  no  objection  to  the 
erection  thereof.  Such  tacit  acquiescence,  however,  is  not  suffi- 
cient to  create  an  equitable  estoppel.  To  produce  such  an 
impediment,  the  evidence  must  conclusively  show  that  money 
has  been  expended  or  labor  performed  in  making  permanent  and 
valuable  improvements  upon  real  property  pursuant  to  an  agree- 
ment of  the  parties,  in  relation  to  the  exercise  of  some  right  over 
an  easement  in  the  lands  of  another,  or  some  joint  participation 
of  the  parties  in  the  enterprise  from  which  a  license  to  do  the 
particular  act  relied  upon  may  reasonably  be  inferred." 

Where  a  water  company  served  written  notice  of  its  claim,  this 
prevents  any  estoppel  in  favor  of  the  persons  so  served  by  reason 
of  any  subsequent  expenditures  by  them.1 

The  question  is  often  confused  with  considerations  of. laches 
and  acquiescence  as  barring  an  injunction — an  entirely  different 
matter.2 

(3d  ed.) 

§  594.  Estoppel  by  Silence. — A  person  entitled  to  the  use  of 
water  is  not  deprived  thereof  by  estoppel  on  merely  seeing  another 
constructing  a  ditch  or  other  works  and  making  no  objection 
thereto  until  the  diversion  is  completed.  Merely  standing  by 
while  a  wrongdoer  incurs  expense  with  a  view  to  consummate  his 
plans  creates  no  estoppel.3  The  principle  is  the  same  as  that  set 

title,  but  of  the  means  of  acquiring  24  Churchill  v.   Baumann,   104   Cal. 

such  knowledge;   and  fourth,  that  he  369,  36  Pac.  93,  38  Pac.  43.     See  Cal. 

relied   directly   upon   such   admission,  Civ.  Code,  sec.  3516. 

and   will  be   injured  by  allowing   its  25  Brown   v.    Gold    Coin '  Min.    Co., 

truth  to  be  disproved.     These  quali-  supra. 

fixations  in  the  application  of  the  doe-  1  Duckworth  v.  Watsonville  etc.  Co., 

trine  will  be  found  fully  sustained  by  150   Cal.  520,  89   Pac.   338 ;    Same  v. 

the  authorities.     There  must  be  some  Same,    158    Cal.    206,    110   Pac.    927; 

degree  of  turpitude  in  the  conduct  of  Burr  v.  Maclay  R.  Co.,  154  Cal.  428, 

a  party  before  a  court  of  equity  will  98   Pac.  260. 

'  estop  him  from  the  assertion  of  his  2  Infra,  sees.  644  et  seq.,  651. 
title — the  effect  of  the  estoppel  being  3  Davis  v.  Martin,  157  Cal.  657, 
to  forfeit  his  property  and  transfer  108  Pac.  866;  Anaheim  Co.  v.  Semi- 
it  to  another."  Tropic  Co.,  64  Cal.  185,  194,  30  Pac. 
23  Brown  v.  Gold  Coin  Min.  Co.,  48  623 ;  Lux  v.  Haggin,  69  Cal.  255,  10 
Or.  277,  86  Pac.  363.  Pac.  674;  Hargrave  v.  Cook,  108  Cal. 


§594  Ch.  25.     LOSS  OF  RIGHT.  (3d  ed.)  643 

forth  in  regard  to  the  use  of  waste  water  coining  from  a  ditch, 
and  the  authorities  there  cited  are  also  in  point.4  Lower  or 
upper  rights  in  the  natural  stream  may  arise  by  appropriation; 
or  upper  rights  by  adverse  use ;  but  standing  by  while  others  use 
the  water,  having  neither  such  right,  does  not  alone  work  an 
estoppel  in  their  favor.  If  one  has  no  right  by  appropriation  or 
adverse  use,  the  mere  silence  of  others  gives  him  none  by  estoppel. 

Estoppels  may  arise  where  the  necessary  facts  are  present. 
But  the  claim  is  usually  based  on  silence,  standing  by,  and  similar 
omission  to  act  while  another  is  incurring  expense  in  arranging 
hostile  plans.  "It  is  safe  to  say  that  few  cases  of  this  character 
have  been  tried  where  the  defense  of  estoppel  has  not  been  inter- 
posed with  result  uniformly  unsuccessful.  The  estoppel  argued 
for  here  is  that  the  parties  now  seeking  to  assert  their  rights 
ought  not  to  be  allowed  to  do  so,  because  they  knew  that  the 
defendants  were  building  up  their  improvements,  and  relying 
upon  the  use  of  the  water  to  maintain  them.  An  all-sufficient 
answer  to  this  is  that  the  defendants  knew  also  that  the  com- 
plainant and  intervener  were  relying  upon  the  same  water  to 
maintain  their  improvements  already  made,  and  to  carry  on  their 
farming  operations  already  begun.  Under  this  view  of  it  the 
one  side  is  as  much  estopped  as  the  other."5 

The  fact  that  one  who  had  filed  a  homestead  entry  on  land  made 
no  objection  to  the  construction  of  a  ditch  thereon  by  an  irriga- 
tion company  until  after  he  had  obtained  his  patent  did  not  estop 
him  from  asserting  that  his  patent  was  not  subject  to  the  com- 

72,  41  Pac.  18,  30  L.  R.  A.  390;  Bath-  Am.  St.  Rep.  783,  62  Pac.  790,  52  L. 

gate  v.  Irvine,  126  Cal.  136,  77  Am.  R.  A.   140;   Carson  v.   Hayes,   39  Or. 

St.  Rep.   158,  58  Pac.  442;   Miller  &  97,  65  Pac.   814;    McPhee  v.  Kelsey, 

Lux  v.  Madera  etc.  Co.,  155  Cal.  59,  44  Or.  193,  74  Pac.  401,  75  Pac.  713 ; 

99  Pac.  502,  22  L.  R.  A.,  N.  S.,  391;  Bolter  v.  Garrett,  44  Or.  304,  75  Pac. 

Farmers'  Co.  v.  Pawnee  Co.,  47  Colo.  143;  Brown  v.  Gold  Coin  Min.  Co.,  47 

239,    107    Pac.   286;    Snyder  v.   Colo.  Or.  277,  86  Pac.  363;  Flinn  v.  Vaughn 

etc.  Co.   (Colo.),  181  Fed.  62;  Hill  v.  (Or.),  106  Pac.   642;   Orient  etc.  Co. 

Standard  Min.  Co.,  12  Idaho,  223,  85  v.  Freckleton  etc.  Co.,  27  Utah,   125, 

Pac.  912;   Walker  v.  Elmore  County,  74   Pae.   652;    Durga   v.   Lincoln   etc. 

16  Idaho,  696,  102  Pac.  389;  Rasmus-  Co.,    47    Wash.    477,    92     Pac.     343; 

sen  v.  Blust,  83  Neb.  678,  120  N.  W.  Rhodes  v.  Barnes,  54  Wash.  145,  102 

184;  Trambley  v.  Luterman,  6  N.  M.  Pac.  884;  McKinney  v.  Big  Horn  Co. 

26,  27   Pac.   312;    Garrett  v.   Bishop,  (Wyo.,  1909),  167  Fed.  770,  93  C.  C. 

27   Or.   349,   41     Pac.   10;     Smyth  v.  A.    258;    City    of   Patterson    v.    East 

Neal,  31  Or.  105,  49  Pac.  850;  North  Jersey  W.  Co.,.  74  N.  J.  Eq.  49,  70 
Powder  Co.  v.  Coughanour,  34  Or.  9,  -  Atl.  472;  McCann  v.  Wallace,  117 

54    Pac.    223;    Lavery   v.    Arnold,    36  Fed.   936.     See   93   Am.   St.  Rep.   71, 

Or.    84,    57    Pac.    906,    58    Pac.    524;  note. 

Hallock  v.  Suitor,  37   Or.   9,   60  Pac.  4  Supra,  sec.  56  et  seq. 

384;   Ewing  v.  Rhea,  37  Or.  583,  82  6  Morris  v.  Bean,  146  Fed.  434. 


644  (3ded.)     Pt.  III.     THE  LAW  OF  PRIOR  APPROPRIATION.       §594 

pany's  rights,  in  view  of  the  statute  providing  that  all  convey- 
ances of  any  interest  in,  and  contracts  creating  any  encumbrances 
on  real  estate,  shall  be  by  deed.6 

An  Oregon  case  (and  there  are  many  such  decisions  in  this 
State  already  cited)  says:7  "It  is  said  that  plaintiffs  made  no 
objections  to  the  expenditures  of  large  sums  of  money  by  the 
defendants  in  opening  up  and  developing  their  mines  in  the  con- 
struction of  hydraulic  works  and  reservoirs  for  the  operation 
thereof.  But  the  mere  silence  of  the  plaintiffs  is  not  'sufficient  to 
estop  them  from  now  asserting  their  rights  because  of  such  ex- 
penditures by  the  defendant.  They  were  not  acting  under  any 
license  or  agreement  with  the  plaintiffs,  but  upon  their  own 
responsibility ;  and  the  plaintiffs  had  a  right  to  assume  that  they 
did  not  intend,  by  their  operation  of  their  mine,  to  interfere 
with  any  of  their  rights."  A  leading  California  case,8  referring 
to  an  instruction  "That  if  those  from  and  through  whom  the 
plaintiffs  claim  had  the  prior  right  to  the  waters,  and  they  stood 
by  and  saw  those  from  whom  the  defendant  derives  his  title  to 
the  ditch,  and  the  right  to  the  waters  of  the  creek,  appropriate* 
the  water  of  the  creek,  at  great  expenditure  of  money  and  labor, 
under  the  mistaken  idea  that  the  defendant's  vendors  were 
obtaining  the  first  appropriation,  and  did  not  inform  them  of  the 
mistake  they,  plaintiff's  vendors,  and  the  plaintiffs  who  claim 
under  them,  are  estopped  from  setting  up  their  prior  right  at 
this  time,"  says:  "In  the  light  of  the  subsequent  decisions,  it  can 
scarcely  be  claimed  that  the  facts  recited  in  the  instruction  con- 
stituted an  equitable  estoppel  which  could  be  relied  on  as  a  defense 
at  law.  It  may  be  that  the  defendant  had  the  better  right.  In 
fact,  the  defendant's  grantors  seem  to  have  appropriated  the 
water  before  the  plaintiff's  grantors  even  'located'  the  mining 
claim.  It  does  not  appear  that  the  plaintiff's  predecessors  ever 
took  actual  possession  of  the  mining  claim ;  and  even  if  the  loca- 
tion of  the  claim  preceded  the  defendant's  appropriation,  it  does 
not  appear  that  the  manner  of  the  location  was  such  as  that 
defendant's  grantors  were  bound  to  take  notice  of  it.  But,  what- 
ever the  facts,  we  cannot  assent  to  the  proposition — apparently 
recognized  by  the  court — that  the  mere  silence  of  plaintiff's 

«  Atkinson  v.  Washington  Irr.  Co.,  7  Carson  v.  Hayes,   39   Or.   97,   65 

44  Wash.  75,  120  Am.  St.  Rep.  978,       Pac.  814,  817. 

86  Pac.  1123.  8  Lux  v.   Haggin,   69   Cal.   255,   at 

278,  10  Pac.  674. 


§  595  Ch.  25.     LOSS  OF  EIGHT.  (3d  ed.)  645 

grantors,  disconnected    from    other    circumstances  in  evidence, 
created  an  estoppel  at  law." 

In  a  more  recent  case  9  the  facts  were  stated,  such  as  that  while 
defendants  were  sinking  wells,  erecting  pumps,  and  laying  pipes, 
plaintiff  had  no  information  from  them  or  from  other  source,  as 
to  the  amount  of  water  to  be  pumped,  and  so  did  not  serve  any 
notice  that  defendants  incurred  expense  at  their  own  peril,  and 
similar  facts;  and  after  stating  these  facts,  Mr.  Justice  Shaw 
said:  "The  facts  stated  are  not  sufficient  to  create  estoppels 
against  the  plaintiffs.  It  does  not  appear  that  either  Verdugo  or 
Ross  was  induced  to  put  down  his  well  by  any  act,  word  or  tacit 
encouragement  of  the  plaintiffs,  or  either  of  them,  or  relied  upon 
their  silence  as  evidence  of  his  own  right,  or  of  their  consent. 
Nor  does  it  appear  that  plaintiffs  intended  that  either  should  act 
in  reliance  upon  their  silence,  or  expected  that  either  would  do  so. 
It  is  not  shown  that  plaintiffs  were  under  any  duty  toward  either 
to  disclose  any  claim  they  might  have  to  the  water,  nor  that  said 
defendants  did  not  know,  at  least  as  well  as  the  plaintiffs  knew, 
that  the  pumping  of  the  respective  wells  would  decrease  the  west 
side  stream,  and  the  underflow  at  the  dam.  The  party  estopped 
must  always  intend,  or  at  least  must  be  so  situated  that  he  should 
be  held  to  have  expected,  that  the  other  party  shall  act,  and  the 
other  party  must,  by  the  words,  conduct  or  silence  of  the  first 
party,  be  induced  or  led  to  do  what  he  would  not  otherwise  do.10 
The  mere  fact  that  the  defendants  expended  money  in  sinking  the 
wells  and  putting  in  the  pumps  each  upon  his  own  land,  with  the 
knowledge  of  the  plaintiffs  and  without  objection  by  them,  creates 
no  estoppel.11  A  mere  passive  acquiescence  where  one  is  under 
no  duty  to  speak  does  not  raise  an  estoppel."12 

(3d  ed.) 

§  595.  Same. — The  usual  case  where  estoppel  in  pais  comes 
into  play  in  the  law  of  waters  is  in  the  matter  of  executed  parol 
licenses.  There  the  party  estopped  has  done  an  affirmative  act,  the 

»  Verdugo   Canyon   W.  Co.  v.  Ver-  15,  5  Morr.  Min.  Eep.  598;   Maye  v. 

dugo    (1908),   152   Cal.   655,   93   Pac.  Yappan,  23  Oal.   308,  10   Morr.  Min. 

1021.  Rep.    101;    Stockman   v.   Riverside  L. 

10  Citing     Carpy    v.    Dowdell,     115  &   I.   Co.,   64   Cal.   59,   28   Pac.    116; 
Cal.  677,  47  Pac.  695 ;   Swain  v.  Sea-  Leonard  v.  Flynn,  89  Cal.  542,  23  Am. 
mans,   9   Wall.   274,    19   L.   Ed.   560;  St.  Rep.  500,  26  Pac.  1097. 
Dickerson  v.  Colegrove,  100  TJ.  S.  580,  12  Citing   Lux   v.    Haggin,   69    Cal. 
25  L.  Ed.  618.  270,    10    Pac.    674;    Rochdale    Co.    v. 

11  Citing  Kelly  v.   Taylor.   23   Cal.  Kinor,  2  Sim.,  N.  S.,  89. 


646  (3ded.)     Pt.  III.     THE  LAW  OF  PRIOR  APPROPRIATION.       §595 

giving  of  a  license,  with  intent  that  it  be  acted  upon ;  as  considered 
in  another  place.13  Perhaps  such  cases  are  not  theoretical  estoppels, 
though  very  similar. 

Our  discussion  here  has  been  confined  to  estoppels  in  pais. 
Regarding  estoppel  by  deed  and  -estoppel  by  judgment,  reference 
is  made  elsewhere.14 

Reference  is  also  made  to  other  places  where  delay,  incurring  of 
expense,  and  public  interest,  influence  the  remedy  obtainable 
without  questioning  the  rule  of  the  present  sections  that  they  in 
no  way  affect  the  right.15 

is  Supra,  see.  556.  15  Infra,  sees.  616,  644  et  seq.,  650, 

I*  Supra,    sees.     541,    544;     infra,      651. 
sees.  1232,  1233. 

§§  596-603.     (Blank  numbers.) 


§604  Ch.  26.     EMINENT  DOMAIN.  (3d  ed.)  647 


CHAPTER  26. 

LOSS  OF  RIGHT  (CONTINUED)— EMINENT  DOMAIN. 

§  604.  Necessity  for  public  use. 

§  605.  Kequirement  of  hearing  and  compensation. 

§•  606.  What  is  a  public  use. 

§  607.  Private  enterprise  as  public  use. 

§  608.  Clark  v.  Nash. 

§  609.  Same — State  statutes  and  decisions. 

§  610.  In  California. 

§  611.  Statement  of  the  rule  of  Clark  v.  Nash. 

§  612.  Practical  results. 

§  613.  Conditions  imposed. 

§  614.  The  French  Irrigation  System. 

§  615.  Procedure  and  miscellaneous. 

§  616.  A  question  of  procedure. 

§  617.  Same. 

§  618.  Same. 

§§  619-623.     (Blank  numbers.) 

(3d  ed.) 

§  604.  Necessity  for  Public  Use. — The  State  cannot  take  prop- 
erty from  one  man  and  present  it  to  another  merely  because  it  pre- 
fers the  other  to  have  it  (as  the  kings  of  Europe  used  to  do),  even 
if  the  latter  is  willing  to  pay  for  it.  In  all  the  States  there  are 
constitutional  provisions  declaring  that  private  property  cannot 
be  taken  from  its  owner  without  due  process  of  law,  which  in- 
hibits taking  a  man's  property  from  him  for  uses  that  are  in  no 
way  public  uses.  The  constitution  of  the  United  States  so  pro- 
vides, as  concerns  Congress,  in  Amendment  V1 — "No  person  shall 
be  ....  nor  be  deprived  of  life,  liberty  or  property  without  due 
process  of  law,"  and  likewise  so  provides  as  concerns  States,  in 
Amendment  XIV — "Nor  shall  any  State  deprive  any  person  of 
life,  liberty  or  property,  without  due  process  of  law."  For  a 
State  to  authorize  the  taking  of  private  property  from  its  owner 
for  purposes  in  no  way  public  would  be  unconstitutional  in  any 
State.  "This  is  necessarily  so,  because  private  property  without 
the  owner's  consent  cannot  be  taken  for  the  private  use  of  an- 
other without  violating  the  fourteenth  amendment  of  the  constitu- 

1  This  amendment  applies  only  to  v.  Bradley,  164  U.  S.  112,  17  Sup. 
acts  of  Congress.  Fallbrook  Irr.  Diat.  Ct.  Rep.  56,  41  L.  Ed.  369. 


648   (3ded.)     Pt.  III.     THE  LAW   OF  PRIOR  APPROPRIATION.       §605 

tion  of  the  United  States."2  But  this  great  principle  is  usually 
reinforced  by  the  constitutions  of  the  various  States  themselves. 
For  example,  the  California  constitution  provides:3  "No  person 
shall  be  .  .  .  . ;  nor  be  deprived  of  life,  liberty  or  property  without 
due  process  of  law."  These  are  the  guaranties  of  the  system  of 
private  ownership  of  property  and  of  the  security  of  the  individual 
against  oppression  by  public  officers,  under  which  we  live,  and 
which  even  the  new  States  of  Arizona,4  New  Mexico  5  and  Oklahoma  6 
have  included  in  their  constitutions, 

(3d  ed.) 

§  605.    Requirement  of  Hearing  and  Compensation. — Even  when 

taken  for  public  use,  constitutions  so  firmly  protect  private  prop- 
erty that  they  prohibit  its  being  taken  away  from  its  owner 
without  a  due  hearing  and  just  compensation.  As  to  Congress 
the  Federal  constitution  so  provides  in  article  V — "Nor  shall 
private  property  be  taken  for  public  use,  without  just  compen- 
sation."7 

The  California  constitution  provides  (in  article  1,  section  14) : 
"Private  property  shall  not  be  taken  or  damaged  for  public  use 
without  just  compensation  having  been  first  made  to,  or  paid  into 
court,  for  the  owner,  and  no  right  of  way  shall  be  appropriated 
to  the  use  of  any  corporation  other  than  municipal  until  full 
compensation  therefor  be  first  made  in  money  or  ascertained  and 
paid  into  court  for  the  owner,  irrespective  of  any  benefit  from 
any  improvement  proposed  by  such  corporation,  which  compen- 
sation shall  be  ascertained  by  a  jury,  unless  a  jury  be  waived,  as 
in  other  civil  cases  in  a  court  of  record,  as  shall  be  prescribed  by 
law." 

In  Colorado  the  constitution  declares:  8  "That  private  property 
shall  not  be  taken  or  damaged,  for  public  or  private  use,  with- 
out just  compensation.  Such  compensation  shall  be  ascertained 

2  Helena    etc.    Co.    v.    Spratt,     35          3  Art.  1,  see.  13. 

^°n«-  IS'  S  ?aC"  n73'  ?ftfc  EVA"          4  Ariz-  Constv  art.  2,  sec.  4. 
N.  S.,  567,  10  Ann.  Cas.  1055,  citing 

Missouri  -Pacific  R.   Co.  v.  Nebraska,  '  N-  M-  Const.,  art.  2,  see.  18. 

164  U.  S.  403,  17  Sup.  Ct.  Rep.  130,  6  Qkl.  Const.,  art.  2,  sec.  7. 
41  L.   Ed.   489;    Fallbrook  Irr.   Dist. 

v.   Bradley,   164  U.   S.    158,   17   Sup.  7  Thls   amendment   applies   only  to 

Ct.  Rep.   56,  41  L.   Ed.   369:   Matter  acts  of  Congress.     Fallbrook  Irr.  Dist. 

of  Tuthill,  163  N.  Y.  133,  79  Am.  St.  v-   Bradley,   164   U.   S.    :  12,    17   Sup. 

Rep.  574,  57  N.  E.  303,  49  L.  R.  A.  Ct-  ReP-  56>  41  L-   Ed-  369- 

781.  8  Const.,  art.  2,  sec.  15. 


§  606  Ch.  26.     EMINENT  DOMAIN.  (3d  ed.)  649 

by  a  board  of  commissioners,  of  not  less  than  three  freeholders,  or 
by  jury,  when  required  by  the  owner  of  the  property,"  etc.* 

(3d  cd.) 

§  606.    What  is  a  Public  Use. — While    the    law  of    eminent 

domain  applies  only  to  takings  for  a  public  use,  there  are  two 
lines  of  decisions  upon  what  is  a  public  use.  The  older  one  is 
that  a  public  use  of  water  must  be  for  the  use  of  the  general  pub- 
lic, the  taking  being  by  its  official  representatives  or  someone 
standing  in  the  position  of  a  public  agent,  and  not  for  particular 
individuals  or  estates.  Such  seems  to  be  the  rule  in  California.10 
Consequently,  in  California,  water  cannot  thus  be  taken  to  run 
a  group  of  mines,  as  it  is  merely  private  enterprise.11  For  irri- 
gation, under  this  view,  water  must  be  condemned,  if  at  all,  only 
by  corporations  or  others  who  will  (and  after  taking  it  must)12 
supply  it  to  the  public  in  general,  and  not  merely  for  their  own 
use.  Such  corporations,  then,  stand  in  the  position  of  an  agent 
of  the  public.13  Lux  v.  Haggin  says:  "It  must  always  be  borne 
in  mind  that  under  the  codes  no  man,  or  set  of  men,  can  take 
another's  property  for  his  own  exclusive  use.  Whoever  attempts 
to  condemn  the  private  right  must  be  prepared  to  furnish  (to  the 
extent  of  the  water  he  consumes  and  pays  for)  every  individual 
of  the  community  or  communities,  farming  neighborhood  or 
farming  neighborhoods,  to  which  he  conducts  it,  the  consumers 
being  required  to  pay  reasonable  rates,  and  being  subjected  to 
reasonable  regulations." 

9  Some    other    examples  are,  inter      124  Cal.  597,  57  Pae.  585;  Leavitt  v. 
alia:  "Private  property  may  be  taken      Lassen  Irr.  Co.,  157  Cal.  82,  106  Pac. 
for  public  use,  but   not  until  a   just       404. 

compensation,  to  be  ascertained  in  a  H  Consolidated  etc.   Co.  v.  Central 

manner   prescribed  by   law,   shall  be  etc.  By.,  51   Cal.  269,  5  Morr.   Min. 

paid  therefor."     Idaho  Const.,  art.  1,  Eep.    438;    Cummings   v.    Peters,    56 

sec.  14.     See  Ariz.  Const.,  art.  2,  sec.  Cal.   593;    Lorenz   v.   Jacob,   63   Cal. 

17;  N.  M.  Const.,  art.  2,  sec.  20;  Okl.  73;   Dower  v.  Richards,   73  Cal.  480, 

Const.,  art.   2,  sec.  24;   Utah  Const.,  15  Pac.  105;  Amador  etc.  Co.  v.  Do 

art.  1,  sec.  22.  Witt,  73  Cal.  485,  15  Pac.  74;  County 

In  the  civil  law  the  principle  also  Of  Sutter  v.  Nichol   (1908),  152  Cal. 

exists,  though  not  having  the  binding  688,  93  Pac.  872,  15  L.  R.  A.,  N.  S., 

force  of  a  constitution:   "No  one  can  616,  14  Ann.  Gas.  900. 
be  despoiled  of  his  property,  nor  of  12  Infra,  sec.  1280. 

his   rights,    not    even    on   account    of  13  State  ex  rel.  Wilson  v.  Superior 

public    utility,    without     first    having  Court,   47   Wash.    397,   92    Pac.    271; 

given     to     him     proper     indemnity."  Colorado  etc.  Co.  v.  McFarland  et  al. 

Eschriche  Aguas,  sec.  2.  (Tex.  Civ.  App.),  94  S.  W.  400;  Bor- 

10  Hilclreth  v.  Montecito    etc.    Co.,  den  v.  Tres  Palacios  etc.  Co.,  98  Tex. 
139   Cal.   22,  72  Pac.  395;   Merrill  v.  494,  107  Am.  St.  Rep.  640,  86  S.  W. 
Southside  Irr.   Co.,   112   Cal.   426,   44  11;  Lux  v.  Haggin,  69   Cal.   255,  10 
Pae.   720;    Los   Angelea  v.   Pomeroy,  Pac.  674. 


650  (3d  ed.)     Pt.  III.     THE  LAW  OF  PRIOR  APPROPRIATION.         §  606 

The  California  constitution  provides  that  sale,  rental,  or  distri- 
bution of  water  is  a  public  use.14 

The  California  legislature  has  provided  15  for  various  cases  of 
eminent  domain  proceedings,  among  them  the  following:  "Canals, 
ditches,  dams,  pondings,  flumes,  aqueducts  and  pipes,  for  irriga- 
tion, public  transportation,  supplying  mines  and  farming  neigh- 
borhoods with  water,  and  draining  and  reclaiming  lands,"  etc. 
The  court  has  upheld  the  taking  by  irrigation  districts 16  and  by 
irrigation  companies,  under  the  provision  allowing  the  taking  for 
"farming  neighborhoods."17  What  constitutes  a  farming  neigh- 
borhood was  considered  in  Lux  v.  Haggin,  saying:  "The  words 
'farming  neighborhoods'  are  somewhat  indefinite;  the  idea  sought 
to  be  conveyed  by  them  is  more  readily  conceived  than  put  into 
accurate  language.  Of  course  'farming  neighborhood'  implies 
more  than  one  farm ;  but  it  would  be  difficult  to  say  that  any  cer- 
tain number  is  essential  to  constitute  such  a  neighborhood.  The 
vicinage  may  be  nearer  or  more  distant,  reference  being  had  to 
the  populousness  or  sparseness  of  population  of  the  surrounding 
country ;  but  the  farmers  must  be  so  near  to  each  other — relatively 
to  the  surrounding  settlers — as  to  make  what  in  popular  parlance 
is  known  as  a  'farming  neighborhood.'  A  very  exact  definition 
of  the  word  is  not,  however,  of  paramount  importance.  The  main 
purpose  of  the  statutes  is  to  provide  a  mode  by  which  the  State, 
or  its  agent,  may  conduct  water  to  arable  lands  where  irrigation 
is  a  necessity,  on  payment  of  due  compensation  to  those  from 
whom  the  water  is  diverted.  The  same  agent  of  the  State  may 
take  water  to  more  than  one  farming  neighborhood."  In  1911  a 
statute  in  general  terms  declares  irrigation  to  be  a  public  use.17a 

The  taking  for  a  public  water  supply  in  California 18  was  up- 
held.19 

14  Art.  14,  see.  1.     See  infra,  sec.  Lindsay  etc.  Co.  v.  Mehrtens,  97  Cal. 
1264.  670,  32  Pac.  802;  Fallbrook  Irr.  Dist. 

15  Cal.  Code  Civ.  Proe.,  sec.   1238.  v.  Bradley,  164  U.  S.  112,  17  Sup.  Ct. 
Copied  substantially  in  several  other  Rep.  56,  41  L.  Ed.  369. 

States;  e.  g.,  Idaho  Rev.  Stats.  1887,  i?a  Stats.  1911,  c.  719. 

sec.  5210,  subd.  3,  as  amended  in  Laws  I8  Under  Code  of  Civil  Procedure, 

190.3,   p.   204;   Idaho  Const.,  art.    1,  sec.  1238. 

eec.  14.  19  St.  Helena  etc.  Co.  v.  Forbes,  62 

16  See  the   chapter    on   "Irrigation  Cal.  182,  45  Am.  Rep.  659;   McCrary 
Districts,"  infra,  c.  58.  v.  Baudry,  67  Cal.   120,   7  Pac.   264; 

17  Lux  v.  Haggin,   69  Cal.  255,  10  Santa  Cruz  v.  Enright,  95  Cal.  105,  30 
Pac.    674;    and   in    Aliso   etc.    Co.    v.  Pac.    197.     See   Cal.    Const.,   art.    14, 
Bake*,    95    Cal.    268,   30     Pac.     537;  sec.  1. 


§  606  Ch.  26.     EMINENT  DOMAIN.  (3d  ed.)  651 

On  the  other  hand,  mining  is  not,  in  California,  a  public  use. 
and  the  above  statute  authorizing  water  to  be  taken  to  run  a 
group  of  mines  is  to  this  extent  unconstitutional.20  The  differ- 
ence between  mining  and  irrigation  in  this  respect  emphasizes  the 
fact,  shown  throughout  this  whole  subject,  that  mining  is  no 
longer  the  paramount  industry  in  California. 

Where  general  public  supply  was  intended,  the  following,  for 
example,  have  been  held  public  uses,  for  which  the  power  of 
eminent  domain  may  be  exercised  :  Irrigation  canals  ;  21  electric 
light,  heat  or  power  plant;  22  courthouses,  jails,  schoolhouses,  city 
halls,  public  markets,  almshouses,  public  parks,  boulevards,  com- 
mons or  pleasure  grounds,  and  places  of  historic  interest,  a  con- 
vention hall.23  But  water  supply  to  sawmills  to  generate  steam 
in  boilers  for  manufacturing  is  held  not  a  public  use  ;  24  and 
quaere  whether  a  municipality  can  condemn  water-rights  on  a 
stream  for  the  purpose  of  polluting  it  with  sewage.25 

What  is  a  public  use  is  always  ultimately  a  judicial  question  ; 
but  a  legislative  declaration  that  a  certain  use  is  public  is  pre- 
sumed to  be  correct,  and  will  not  be  overturned  unless  it  clearly 
appears  to  be  without  reasonable  foundation.1  Where  the  in- 
tended use  is  for  the  government,  the  presumption  that  it  is  a 
public  use  is  stronger  than  when  the  proposed  supply  to  or  ser- 
vice of  the  public  is  to  be  made  by  a  private  corporation  under 
delegated  right  of  eminent  domain.2 

20  Cases  cited  supra.  24  State  ex  rel.   Shropshire  v.   Su- 

21  Portneuf     Irr.     Co.     v.     Budge  perior   Court    (1909),   51   Wash.   386, 
(1909),  16  Idaho,  116,  100  Pac.  1046.  99  Pac.  3. 

22  Tuolumne   etc.   Co.  v.   Frederick,  .  _2*  7"laf8  <*  TW  in  ^aja  v.  Stubbs, 
13Cal.App.498,  110  Pac.  134;  North-  15  Idaho,  68    96  Pac.  195 

ern  Cal.   etc.   Co.   v.   Stacher/  13   Gal.       p  l  ^  v"  H^in'   6     Gal.   255,   10 

P674*on  °*c' 


App.  404,  109    Pac.    896;    Walker    v.  JKn  °'  *•/•       ™ 

aiTol+o    T>«          rv     fr«.i  \     i«n    TTWI  e*c-  Co.,  45  Neb.  884.  50  Am.  St.  Eep. 

Shasta   Power   Co.    (Cal.),    160    Fed.  —  _       '„   w    _        '     _     R     .         ^ 

R^Q     R7    P     P      A      fifiO  •     StArnhprcrpr   v  °8O,    O4    IN.     W  .    A1A,    6V    Lt.    K.   A.    8CUS  , 

859    87  C.  u  A    660     bternberger  v.  g          ex  Manhattan   etc>   Co>   v. 

S«ton  etc.  Co.,  45  Colo.  401    102  Pac.  B&ru        ^ 

168;    Holhster  v.  State,  9   Idaho    8,  (  .  .     '  2  ^       Qn  ^        c 

,1    Pac    541      See,  also    21  L.  E.  A  Coolegon  Const>  Lim    7th  ed  ^  '  ?77 

;«  n   Ter;-,  °:  N  fl      r     ?  '•     i  I     '  **gto  v.  Stogsdale.  123  Ind.  372,  24 

p.  456;  United  States  Geological  Sur-  N«^    135,   |  L.   R.   A.   58.    Un  ted 

vey     Water    Supply    Paper    No     238.  gtateg  y    ^ett    bu       Co      ^0   n    g 

But    see    contra,    Minnesota    Co     v  66g    lfi  g        ^     ^        f 

Kaodnching   Co      97   Minn    444    107  5?6'   ^gf    Moore^  3  Ind>  Ter>  712 

N.  W.  410,  5  L.  R.  A.,  N.  S.,  638,  7  64  g  w   585) 

Ann.  Cas    1182.     See,  also,  infra,  sec.  2  uniied  S;tate8  v.  Gettysburg  Co., 

609,  note  21.  160  n    g_  66gi  16  gup    Ct    Rep^  ^ 

23  State  ex  rel.  Manhattan  etc.  Co.  40  L.   Ed.   576;    State  ex  rel.    Man- 

v.  Barnes,  22  Okl.  191,  97  Pac.  1000,  hattan  etc.  Co.  v.  Barnes,  22  Okl.  191, 

reviewing  authorities.  97  Pac.  1000. 


652  (3ded.)     Pt.  III.     THE  LAW  OF  PRIOR  APPROPRIATION.         §607 

Cases  holding  that,  to  constitute  a  public  use,  the  use  must  be 
for,  or  available  to,  the  general  public,  and  that  all  the  public,  or 
a  class  thereof,  must  have  a  right  to  share  directly  in  the  use,  are 
given  herewith.3 

This  is  again  considered  in  connection  with  the  distribution  of 
water  to  public  uses.4 

(3d  ed.) 

§  607.    Private  Enterprise  as  Public  Use. — On  the  other  hand, 

there  is  the  second  view,  that  the  right  to  actual  use  by  the  public 
or  a  class  thereof  is  not  necessary,  but  that  the  promotion  of  a 
great  industry,  such  as  mining  in  some  States,  irrigation  in  others, 
may,  under  peculiar  local  conditions,  be  of  sufficient  interest  to 
the  public  at  large  to  constitute  the  taking  of  another  man's 
property  by  a  private  person  for  his  individual  enterprise  alone, 
a  public  use.  Public  use  is  considered  more  from  the  view  of 
"public-spirited  private  use"  than  of  actual  use  by  the  public. 
The  leading  case  in  support  of  this  doctrine  is  the  recent  decision 
of  the  supreme  court  of  the  United  States  in  Clark  v.  Nash,5 
affirming  the  Utah  case  of  Nash  v.  Clark.6  The  supreme  court  of 
Utah  said:  "One  class  of  authorities,  in  a  general  way,  holds 
that  by  public  use  is  meant  a  use  by  the  public  or  its  agencies — 
that  is,  the  public  must  have  the  right  to  the  actual  use  in  some 
way  of  the  property  appropriated;  whereas  the  other  line  of 
decisions  holds  that  it  is  a  public  use  within  the  meaning  of  the 
law  when  the  taking  is  for  a  use  that  will  promote  the  public 

3  As   cited   in   Helena   etc.    Co.   v.  River  Power  Co.,   39   Wash.   648,   82 

Spratt,  35  Mont.  108,  88  Pac.  775,  8  L.  Pac.  150,  2  L.  R.  A.,  N.   S.,  842,  4 

R.    A.,   N.    S.,    567,    viz.:    Borden   v.  Ann.    Cas.    987;     State    v.    Superior 

Trespalaeios  Rice  etc.  Co.   (Tex.  Civ.  Court,  42  Wash.  660,  85  Pac.  666. 

App.),  82  S.  W.  461;   Pittsburg  etc.  See,   also,   State   ex   rel.   Wilson  v. 

R.  Co.  v.  Benwood  Iron  Works,  31  W.  Superior  Court,  47  Wash.  397,  92  Pac. 

Va.  710,  8  S.  E.  453,  2  L.  R.  A.  680;  271;    Hildreth   v.    Montecito   W.   Co., 

Varner   v.    Martin,    21   W.   Va.    534;  139   Cal.  22,  72  Pac.  395;   Leavitt  v. 

Fallsburg   Power   Mfg.   Co.    v.   Alex-  Lassen  Irr.  Co.,  157  Cal.  82,  106  Pac. 

ander,   101  Va.  98,  99  Am.  St.  Rep.  404;    Price   v.   Riverside   etc.   Co.,   56 

855,  43  S.  E.  194,  61  L.  R.  A.  129;  Cal.    431;    McCrary    v.    Beaudry,    67 

In  re  Barre  Water  Co.,   72   Vt.  413,  Cal.    120,   7   Pac.    264;    Crow   v.   San 

48  Atl.  653 ;   Avery  v.  Vermont  Elec-  Joaquin  W.  Co.,  130  Cal.  309,  62  Pac. 

trie  Co.,  75  Vt.  235,  98  Am.  St.  Rep.  562,  1058. 

818,   54  Atl.   179,   59   L.   R.   A.   817;  4  Infra,  sec.  1260  et  seq. 

Berrien  Springs  Water  Co.  v.  Berrien  5  198  U.   S.  361,  25  Sup.  Ct.  Rep. 

Circuit  Judge,  133  Mich.  48,  103  Am.  676,  49  L.  Ed.  1085,  4  Ann.  Cas.  1171. 

St.  Rep.  438,  94  N.  W.  379;   Brown  «  27  Utah,   158,   101  Am.  St.  Rep. 

v.  Gerald,  100  Me.  351,  109  Am.  St.  953,  75  Pac.  371,  1  L.  R.  A.,  N.  S., 

Rep.  526,  61  Atl.  785,  70  L.  R.  A.  472 ;  208. 
State  ex  rel.  Tacoma  etc.  Co.  v.  White 


§  608  Ch.  26.     EMINENT  DOMA1TT.  (3d  ed.)  653 

interest,  and  which  use  tends  to  develop  the  natural  resources  of 
the  commonwealth."  And  held  that  a  Utah  statute7  providing 
for  the  enlargement  by  condemnation  of  another's  ditch  to  con- 
vey water  to  your  land  for  irrigation  is  constitutional.8  This  was 
affirmed  by  the  supreme  court  of  the  United  States  in  Clark  v. 
Nash,9  as  follows: 

(3d  ed.) 

§  608.  Clark  v.  Nash.10 — In  the  course  of  the  statement  of  the 
case  by  Mr.  Justice  Peckham,  it  is  said:  "This  action  was  brought 
by  the  defendant  in  error,  Nash,  to  condemn  a  right  of  way,  so 
called,  by  enlarging  a  ditch  for  the  conveying  of  water  across  the 
land  of  plaintiffs  in  error,  for  the  purpose  of  bringing  water  from 
Fort  Canyon  Creek,  in  the  county  and  State  of  Utah,  which  is  a 
stream  of  water  flowing  from  the  mountains  near  to  the  land  of 

the  defendant  in  error,  and  thus  to  irrigate  his  land That 

the  said  waters  of  said  Fort  Canyon  Creek  cannot  be  brought 
upon  the  said  plaintiff's  said  land  by  any  other  route  except  by 
and  through  the  ditch  of  the  defendants,  owing  to  the  canyon 
through  which  said  ditch  runs  being  such  as  to  only  be  possible 
to  build  one  ditch."  Defendants  refused  to  give  permission. 
The  ditch  was  to  be  widened  only  one  foot  and  the  whole  damage 
would  be  forty  dollars  ($40) .  Mr.  Justice  Peckham  delivered  the 
opinion  of  the  court,  which  follows  in  full : u 

"The  plaintiffs  in  error  contend  that  the  proposed  use  of  the 
enlarged  ditch  across  their  land  for  the  purpose  of  conveying 
water  to  the  land  of  the  defendant  in  error  alone  is  not  a  public 
use,  and  that,  therefore,  the  defendant  in  error  has  no  constitu- 
tional or  other  right  to  condemn  the  land,  or  any  portion  of  it, 
belonging  to  plaintiffs  in  error,  for  that  purpose.  They  argue 
that,  although  the  use  of  water  in  the  State  of  Utah  for  the  pur- 
poses of  mining  or  irrigation  or  manufacturing  may  be  a  public 

7  Utah  Eev.  Stats.,  1898,  sec.  1278;  Schilling   v.   Eominger,   4   Colo.   100; 
Comp.  Laws  1907,  sec.  1288x22;  Laws  Ellinghouse  v.  Taylor,  19  Mont.  462, 
1905,  p.  160.  48    Pac.    757;    Fallbrook    Irr.    Co.   v. 

8  Belying   on   Dayton   Min.    Co.   v.  Bradley,   164  U.  S.  112,  17  Sup.  Ct. 
Seawell,   11   Nev.   394,   5   Morr.   Min.  Eep.  56,  41  L.  Ed.  369. 

Rep.   424,   holding   similarly   as   to    a  9  198  U.   S.  361,  25  Sup.  Ct.  Rep. 

right    of    way    to    haul    material    to  676,  49  L.  Ed.  1085,  4  Ann.  Cas.  1171. 

one's  mine;   and  citing  Oury  v.  Good-  10  198  U.  S.  361,  25  Sup.  Ct.  Rep. 

win,   3    Ariz.    255,   26   Pac.   376;    De  676,  49  L.  Ed.  1085,  4  Ann.  Cas.  1171. 

Graffenried  v.   Savage,   9   Colo.   App.  U  Clark  v.  Nash,  198  U.  S.  361,  25 

131,  47  Pac.  902 ;  Yunker  v.  Nichols,  Sup.  Ct.  Rep.  676,  49  L.  Ed.  1085,  4 

1   Colo.  551,   8   Morr.   Min.  Rep.   64;  Ann.  Cas.  1171. 


654  (3d  ed.)     Pt.  III.     THE  LAW  OF  PRIOR  APPROPRIATION.         §  608 

use  where  the  right  to  use  it  is  common  to  the  public,  yet  that  no 
individual  has  the  right  to  condemn  the  land  for  the  purpose  of 
conveying  water  in  ditches  across  his  neighbor's  land,  for  the 
purpose  of  irrigating  his  own  land  alone,  even  where  there  is,  as 
in  this  case,  a  State  statute  permitting  it. 

"In  some  States,  probably  in  most  of  them,  the  proposition  con- 
tended for  by  the  plaintiffs  in  error  would  be  sound.  Bui 
whether  a  statute  of  a  State  permitting  condemnation  by  an  in- 
dividual for  the  purpose  of  obtaining  water  for  his  land  or  for 
mining  should  be  held  to  be  a  condemnation  for  a  public  use,  and, 
therefore,  &  valid  enactment,  may  depend  upon  a  number  of  con- 
siderations relating  to  the  situation  of  the  State  and  its  possibili- 
ties for  land  cultivation,  or  the  successful  prosecution  of  its  min- 
ing or  other  industries.  Where  the  use  is  asserted  to  be  public, 
and  the  right  of  the  individual  to  condemn  land  for  the  purpose 
of  exercising  such  use  is  founded  upon  or  is  the  result  of  some 
peculiar  condition  of  the  soil  or  climate,  or  other  peculiarity  of 
the  State,  where  the  right  of  condemnation  is  asserted  under  a 
State  statute,  we  are  always,  where  it  can  fairly  be  done,  strongly 
inclined  to  hold  with  the  State  courts,  when  they  uphold  a  State 
statute  providing  for  such  condemnation.  The  validity  of  such 
statutes  may  sometimes  depend  upon  many  different  facts,  the 
existence  of  which  would  make  a  public  use,  even  by  an  indi- 
vidual, where,  in  the  absence  of  such  facts,  the  use  would  clearly 
be  private.  Those  facts  must  be  general,  notorious,  and  acknowl- 
edged in  the  State,  and  the  State  courts  may  be  assumed  to  be 
exceptionally  familiar  with  them.  They  are  not  the  subject  of 
judicial  investigation  as  to  their  existence,  but  the  local  courts 
know  and  appreciate  them.  They  understand  the  situation  which 
led  to  the  demand  for  the  enactment  of  the  statute,  and  they  also 
appreciate  the  results  upon  the  growth  and  prosperity  of  the  State 
which,  in  all  probability,  would  flow  from  a  denial  of  its  validity. 
These  are  matters  which  might  properly  be  held  to  have  a  mate- 
rial bearing  upon  the  question  whether  the  individual  use  pro- 
posed might  not  in  fact  be  a  public  one.  It  is  not  alone  the  fact 
that  the  land  is  arid  and  that  it  will  bear  crops  if  irrigated,  or 
that  the  water  is  necessary  for  the  purpose  of  working  a  mine, 
that  is  material ;  other  facts  might  exist  which  are  also  material — 
such  as  the  particular  manner  in  which  the  irrigation  is  carried 
on  or  proposed,  or  how  the  mining  is  to  be  done  in  a  particular 
place  where  water  is  needed  for  that  purpose.  The  general  situa- 


§608  Ch.  26.     EMINENT  DOMAIN.  (3ded.)655 

tion  and  amount  of  the  arid  land  or  of  the  mines  themselves  might 
also  be  material  and  what  proportion  of  the  water  each  owner 
should  be  entitled  to ;  also  the  extent  of  the  population  living  in 
the  surrounding  country,  and  whether  each  owner  of  land  or 
mines  could  be,  in  fact,  furnished  with  the  necessary  water  in  any 
other  way  than  by  the  condemnation  in  his  own  behalf,  and  not 
by  a  company,  for  his  use  and  that  of  others. 

"These,  and  many  other  facts  not  necessary  to  be  set  forth  in 
detail,  but  which  can  easily  be  imagined,  might  reasonably  be  re- 
garded as  material  upon  the  question  of  public  use,  and  whether 
the  use  by  an  individual  could  be  so  regarded.  With  all  of  these 
the  local  courts  must  be  presumed  to  be  more  or  less  familiar. 
This  court  has  stated  that  what  is  a  public  use  may  frequently 
and  largely  depend  upon  the  facts  surrounding  the  subject,  and 
we  have  said  that  the  people  of  a  State,  as  also  its  courts,  must,  in 
the  nature  of  things,  be  more  familiar  with  such  facts,  and  with 
the  necessity  and  occasion  for  the  irrigation  of  the  lands,  than 
can  anyone  be  who  is  a  stranger  to  the  soil  of  the  State,  and  that 
such  knowledge  and  familiarity  must  have  their  due  weight  with 
the  State  courts.12  It  is  true  that  in  the  Fallbrook  case  the  ques- 
tion was  whether  the  use  of  the  water  was  a  public  use  when  a 
corporation  sought  to  take  land  by  condemnation  under  a  State 
statute,  for  the  purpose  of  making  reservoirs  and  digging  ditches 
to  supply  landowners  with  the  water  the  company  proposed  to 
obtain  and  save  for  such  purpose.  This  court  held  that  such  use 
was  public.  The  case  did  not  directly  involve  the  right  of  a  sin- 
gle individual  to  condemn  land  under  a  statute  providing  for  that 
condemnation. 

"We  are,  however,  as  we  have  said,  disposed  to  agree  with  the 
Utah  court  with  regard  to  the  validity  of  the  State  statute  which 
provides,  under  the  circumstances  stated  in  the  act,  for  the  con- 
demnation of  the  land  of  one  individual  for  the  purpose  of  allow- 
ing another  individual  to  obtain  water  from  a  stream  in  which  he 
has  an  interest,  to  irrigate  his  land,  which  otherwise  would  remain 
absolutely  valueless. 

"But  we  do  not  desire  to  be  understood  by  this  decision  as  ap- 
proving of  the  broad  proposition  that  private  property  may  be 
taken  in  all  cases  where  the  taking  may  promote  the  public  inter- 
est and  tend  to  develop  the  natural  resources  of  the  State.  We 

12  Citing  Fallbrook  Irr.  Dist.  v.  Bradley,  164  U.  S.  112,  159,  17  Sup. 
Ct.  Kep.  56,  41  L.  Ed.  369,  388. 


656  (3d  ed.)     Pt.  III.     THE  LAW  OF  PEIOR  APPROPRIATION. 

simply  say  that  in  this  particular  case,  and  upon  the  facts  stated 
in  the  findings  of  the  court,  and  having  reference  to  the  condi- 
tions already  stated,  we  are  of  opinion  that  the  use  is  a  public 
one,  although  the  taking  of  the  right  of  way  is  for  the  purpose 
simply  of  thereby  obtaining  the  water  for  an  individual,  where  it 
is  absolutely  necessary  to  enable  him  to  make  any  use  whatever 
of  his  land,  and  which  will  be  valuable  and  fertile  only  if  water 
can  be  obtained.  Other  landowners  adjoining  the  defendant  in 
error,  if  any  there  are,  might  share  in  the  use  of  the  water  by 
themselves  taking  the  same  proceedings  to  obtain  it,  and  we  do 
not  think  it  necessary,  in  order  to  hold  the  use  to  be  a  public  one, 
that  all  should  join  in  the  same  proceeding,  or  that  a  company 
should  be  formed  to  obtain  the  water  which  the  individual  land- 
owner might  then  obtain  his  portion  of  from  the  company  by  pay- 
ing the  agreed  price,  or  the  price  fixed  by  law. 

"The  rights  of  a  riparian  owner  in  and  to  the  use  of  the  water 
flowing  by  his  land  are  not  the  same  in  the  arid  and  mountainous 
States  of  the  West  that  they  are  in  the  States  of  the  East.  These 
rights  have  been  altered  by  many  of  the  Western  States  by  their 
constitutions  and  laws,  because  of  the  totally  different  circum- 
stances in  which  their  inhabitants  are  placed,  from  those  that 
exist  in  the  States  of  the  East,  and  such  alterations  have  been 
made  for  the  very  purpose  of  thereby  contributing  to  the  growth 
and  prosperity  of  those  States,  arising  from  mining  and  the  culti- 
vation of  an  otherwise  valueless  soil,  by  means  of  irrigation. 
This  court  must  recognize  the  difference  of  climate  and  soil, 
which  render  necessary  these  different  laws  in  the  States  so 
situated. 

''We  are  of  opinion,  having  reference  to  the  above  peculiarities 
which  exist  in  the  State  of  Utah,  that  the  statute  permitting  the 
defendant  in  error,  upon  the  facts  appearing  in  this  record,  to 
enlarge  the  ditch,  and  obtain  water  for  his  own  land,  was  within 
the  legislative  power  of  the  State,  and  the  judgment  of  the  State 
court  affirming  the  validity  of  the  statute  is  therefore  affirmed." 
(Mr.  Justice  Harlan  and  Mr.  Justice  Brewer  dissented.) 

The  supreme  court  of  the  United  States  affirmed  Clark  v.  Nash 
in  Strickley  v.  Highland  Boy  Co.,13  and  applied  the  same  rule  to 
mining  in  Utah. 

13  200  U.  S.  527,  26  Sup.  Ct.  Rep.  51    L.    Ed.    499;    Burley    v.    United 

301,  50  L.  Ed.  581,  4  Ann.  Cas.  1174.  States  (1910),  179  Fed.  1,  102  C.  C. 

See,    also,   Bacon   v.    Walker    (1906),  A.  429. 
204  U.  S.  315,  27  Sup.  Ct.  Rep.  289, 


609 


Ch.  26.     EMINENT  DOMAIN. 


(3ded.)  657 


(3d  eel) 

§  609.  Same — State  Statutes  and  Decisions. — Statutes  similar 
to  that  upheld  in  Clark  v.  Nash  for  building  ditches  on  another's 
land,  or  enlarging  existing  ditches,  or  carrying  on  other  work  for 
one's  private  water  supply  alone,  are  contained  in  numerous 
Western  States.14  Other  statutes  and  constitutions  usually  de- 
clare the  "use  of  water"  a  public  use  in  such  general  terms  that 
private  enterprise  would  seem  to  be  within  them.  Some  such  stat- 
utes are  referred  to  in  the  note  which  the  reader  may  consider  in 
examining  the  question.15  Besides  these  statutes  providing  for 
condemnation,  there  are  others  elsewhere  cited  providing  for  such 
work  even  without  condemnation  or  payment  of  compensation, 
held  invalid  on  that  account,  but  which  may  possibly  hereafter 
be  upheld  by  construing  them  as  providing  for  condemnation.16 

The  rule  of  Clark  v.  Nash  that  public  interest  in  the  prosperity 
of  an  industry  may,  under  peculiar  local  conditions,  constitute 
private  enterprise  a  public  use,  has  been  applied,  under  statutes 


14  Colorado. — Colo.  Const.,  art.  2, 
sec.  14,  saying:  "That  private  prop- 
erty shall  not  be  taken  for  private  use 
except  for  private  ways  of  necessity 
and  except  for  reservoirs,  drains, 
flumes  or  ditches  on  or  across  the 
lands  of  others,  for  agricultural,  min- 
ing, milling,  domestic,  or  sanitary  pur- 
poses." M.  A.  S.,  2261,  2262,  2263 
(enlargement).  See,  also,  M.  A.  S. 
2256  et  seq.;  Rev.  Stats.  1908,  sees. 
3167-3174;  Gen.  Stats.,  sees.  1712- 
1721;  Gen.  Stats.,  sees.  1373-1376; 
Eev.  Stats.  363;  Laws  1861,  p.  67; 
Laws  1870,  p.  158;  Laws  1879,  p.  95; 
Laws  1881,  pp.  161,  164;  Const.,  art. 
16,  see.  7. 

Idaho. — McLean's  Idaho  Rev.  Codes, 
sees.  3303-3305;  Laws  1899,  p.  380, 
sees.  10,  14;  Eev.  Stats.  1887,  sees. 
3181,  3184;  11  Terr.  Sess.  (1881)  271. 

Montana. — Civ.  Code,  sec.  1894; 
Comp.  Stats.  1887,  sec.  1240. 

Nebraska. — Cobbey's  Ann.  Stats., 
sees.  6730,  6750,  6793;  Laws  1889, 
c.  68,  p.  504,  sec.  3. 

North  Dal  ota.— Stats.  1909,  p.  179; 
Comp.  Laws  1887,  sec.  2030. 

Oklalioma. — See  Const.  1907,  art.  2, 
see.  23. 

Oregon. — Stats.  1891,  p.  52,  sees.  12, 
13.     Stats.  1911,  c.  238,  p.  421   (en- 
larging another's  ditch). 
Water  Rights — 42 


South  Dakota.— Stats.  1907,  c.  108, 
sec.  3  (semble). 

Utah. — See  the  statute  cited  in 
Clark  v.  Nash. 

Washington. — Laws  1899,  c.  131,  p. 
261.  (See  State  ex  rel.  Galbraith  v. 
Superior  Court  (Wash.),  110  Pac.- 
429.)  The  Washington  constitution, 
section  16,  article  1,  substantially 
copies  Colorado  Constitution,  article 

2,  section  14,  supra. 

Wyoming. — Laws  1907,  e.  52,  as 
amd.  19Q9,  c.  96. 

This  list  is  probably  not  complete. 

15  N.  M.   Stats.   1907,  p.   71,  sees. 

3,  54;   N.  D.  Stats.   1905,  c.  34,  sec. 
3;    Okl.   Stats.   1906,  p.   274,   sec.   2; 
Utah    Stats.    1905,    c.    108,    sec.    50; 
Wash.    Const.,    art.    21,    see.    1.     In 
Pierce's  Code,   section  5122,  "use   of 
water  at  all  times"  declared  a  public 
use. 

16  Statutes    cited    supra,    sec.    223, 
enacted  to  follow  Yunker  v.  Nichols. 
But  see  Starritt  v.  Young,   14  Wyo. 
146,   116  Am.  St.  Rep.  994,   82  Pac. 
946,  4  L.  R.  A.,  N.  S.,  169,  holding 
that  a  statute  which  is  invalid  in  pro- 
viding for  ditch-building  without  no- 
tice   or   the    other   requisites   of   con- 
demnation cannot  be  made  valid  by 
construing    into    it    a    condemnation 
provision    which    the    legislature    did 
not  put  there. 


658   (3ded.)     Pt.  III.     THE  LAW  OF  PRIOR  APPROPRIATION.    .      §609 


similar  to  those  cited,  to  mining,  in  Alaska,  Nevada  and  Utah.17 
It  has  been  applied  to  irrigation  in  Arizona,  Colorado,  Idaho, 
Montana,  Nebraska,  Texas,  Utah,  and  Washington.18  It  has  been 
applied  in  Idaho  to  taking  land  for  a  storage  reservoir  to  float 
logs  to  a  private  sawmill ; 19  in  Montana,20  to  flooding  lands  to 
obtain  water-power  by  an  electric  company  supplying  mines  and 
smelters  (as  well  as  supplying  water,  for  irrigation,  by  the  same 
company).  Condemnation  for  power  plants  has,  in  the  West, 
usually  been  rested  on  this  view,  though,  when  the  company  is 
bound  to  supply  all  the  public  to  the  extent  of  its  capacity,  it 
would  also  be  a  public  use  under  the  narrower  view.21 


17  Alaska. — Miocene  D.  Co.  v.  Jacob- 
sen,  146   Fed.   680.,   77  C.   C.  •  A.  106. 
But  see   Van  Dyke  v.   Midnight  Sun 
Co.  (Alaska),  177  Fed.  90,  100  C.  C. 
A.    503,    saying    in    a    mining    case 
(dictum)  :     "The     diversion     of     the 
waters   of  Big  Hurrah  Creek  by  the 
plaintiff  was  not  for  any  public  use, 
but  solely   for  its  own   purposes.     If 
so,  as  a  matter  of  course,  the  plain- 
tiff had  no  right  of  condemnation." 

Colorado. — See  Snyder  v.  Colorado 
etc.  Co.  (C.  C.  A.),  181  Fed.  62  (dic- 
tum that  right  of  way  for  a  private 
mining  ditch  may  be  condemned). 

Montana. — See  Kipp  v.  Davis  etc. 
Co.  (Mont.),  110  Pac.  237. 

Nevada. — Dayton  Min.  Co.  v.  Sea- 
well,  11  Nev.  394,  5  Morr.  Min.  Rep. 
424. 

Utah. — Strickley  v.  Highland  Boy 
Co.,  200  U.  S.  527,  26  Sup.  Ct.  Rep. 
301,  50  L.  Ed.  581,  4  Ann.  Cas.  1174. 

18  Arizona. — Oury    v.     Goodwin,    3 
Ariz.  255,  26  Pac.  376. 

Colorado. — Kaschke  v.  Canfield,  46 
Colo.  60,  102  Pac.  1061;  Yunker  v. 
Nichols,  1  Colo.  551,  8  Morr.  Min. 
Rep.  64,  semble;  Schilling  v.  Romin- 
ger,  4  Colo.  100,  semble;  Schneider 
v.  Schneider,  36  Colo.  518,  86  Pae. 
347,  semble;  Tripp  v.  Overacker,  7 
Colo.  73,  1  Pac.  695;  Downing  v. 
More,  12  Colo.  316,  20  Pac.  766;  Sand 
Creek  Co.  v.  Davis,  17  Colo.  326,  29 
Pac.  742 ;  Patterson  v.  Brown  etc.  Co., 
3  Colo.  App.  511,  34  Pac.  769. 

See  supra,  see.  223,  appropriation 
on  private  land. 

Idaho. — Portneuf  Irr.  Co.  v.  Budge, 
16  Idaho,  116,  100  Pac.  1046  (dictum 
only). 

Montana. — Ellinghouse  v.  Taylor,  19 
Mont.  462,  48  Pac.  757.  In  Prentice 


v.  McKay,  38  Mont.  114,  98  Pac.  1081, 
it  is  said  (dictum),  in  a  case  where  a 
right  of  way  was  sought  for  individual 
and  not  general  supply:  "Since  the 
use  of  water  is  declared  by  the  con- 
stitution of  this  state  (article  3,  sec- 
tion 15)  to  be  a  public  use,  the  right 
to  appropriate  water  on  the  land  of 
another  may  be  acquired  by  condem- 
nation proceedings." 

Nebraska. — Semble,  Crawford  etc. 
Co.  v.  Hathaway,  67  Neb.  325,  108 
Am.  St.  Rep.  647,  93  N.  W.  781,  60 
L.  R.  A.  889;  Cline  v.  Stock,  71  Neb. 
70,  102  N.  W.  265;  McCook  Irr.  Co. 
v.  Crews,  70  Neb.  115,  102  N.  W.  249. 
See  Paxton  Co.  v.  Farmers'  Co.,  45 
Neb.  885,  50  Am.  St.  Rep.  585,  64  N. 
W.  343,.29  L.  R.  A.  853. 

Texas' — Consider  Mundy  v.  Hart 
(Tex.  Civ.  App.),  Ill  S.  W.  236. 

Utah.-^Claik  v.  Nash,  supra. 

Washington. — State  ex  rel.  Gal- 
braith  v.  Superior  Court  (Wash.),  110 
Pac.  429 ;  Weed  v.  Goodwin,  36  Wash. 
31,  78  Pac.  36.  (But  compare  State 
ex  rel.  Wilson  v.  Superior  Court,  47 
Wash.  397,  92  Pac.  271.) 

19  Potlatch  etc.  Co.  v.  Peterson,  12 
Idaho,  769,  118  Am.  St.  Rep.  233,  88 
Pac.  426.     Contra,   see   State   ex  rel. 
Wilson  v.   Superior   Court,   47   Wash. 
397,  92  Pac.  271. 

20  Helena  Power  Co.  v.  Spratt,  35 
Mont.  108,  88  Pac.  773,  8  L.  R.  A.,  N. 
S.,  567,   10   Ann.  Cas.   1055. 

21  See  Salt  Lake  City  v.  Salt  Lake 
City  W.  &  E.  P.  Co.,  25  Utah,  441,  71 
Pac.  1071 ;  Hollister  v.  State,  9  Idaho, 
651,  71  Pac.  339 ;  Denver  P.  &  I.  Co. 
v.  Denver  &  R.  G.   R.  Co.,  30   Colo. 
•204,   69   Pac.   568,   60   L.   R.   A.   383. 
See,  also,  supra,  sec.  606,  note  22. 


§  609  Ch.  26.     EMINENT  DOMAIN.  (3d  ed.)  659 

In  a  recent  Idaho  case  22  it  is  said:  "The  decisions  under  many 
State  constitutions,  therefore,  are  of  little  value  as  precedents  for 
cases  arising  under  constitutions  like  that  of  Idaho,  Colorado, 
and  other  Western  States,  which  make  the  character  of  the  use, 
whether  strictly  public  or  otherwise,  the  criterion  of  the  right  to 
exercise  the  power.  There  are  two  well-marked  and  conflicting 
lines  of  decisions  by  the  courts  in  dealing  with  the  constitutional 
rights  to  exercise  the  power  of  eminent  domain.  One  class  of 
those  decisions  is  represented  by  Brown  v.  Gerald,23  which  draws 
a  sharp  distinction  between  'public  use'  and  'public  benefit'  and 
guards  the  private  rights  of  property  against  the  assertion  of  the 
power  of  eminent  domain  for  public  benefits  as  distinguished 
from  public  use.  The  other  line  of  decisions  is  represented  by 
Nash  v.  Clark,24  which  case  was  taken  by  error  to  the  supreme 
court  of  the  United  States.25  ....  The  latter  class  of  cases  takes 
the  view  that  the  general  welfare  and  benefit  of  the  public 
should  prevail  over  private  property  rights  even  though  the  use 
for  which  the  power  of  eminent  domain  is  asserted,  is  not,  in  a 
strict  sense,  a  public  use,  and,  as  stated  in  the  note  to  State  ex 
Tel.  Tacoma  I.  Co.  v.  White  River  P.  Co.,1  'the  influence  of  pecu- 
liar local  conditions  and  necessities  in  determining  the  choice 
between  these  two  tendencies  is  plainly  discernible.'  '  A  recent 
Montana  case,2  relying  on  Clark  v.  Nash,  says:  "The  courts  of 
the  Western  States  have,-  as  a  rule,  adopted  a  liberal  view  of  the 
term  'public  use,'  and  in  the  main  have  largely  followed  the  so- 
called  'Mill  Cases'  of  'New  England."3  And  quoting  another 
Montana  case:  "The  public  policy  of  the  Territory  and  of  the 
State  of  Montana  has  always  been  to  encourage  in  every  way 
the  development  of  the  minerals  contained  in  the  mountains; 
and  the  necessity  for  adding  to  its  tilled  acreage  is  manifest. 
This  State  is  an  arid  country,  and  water  is  essential  to  the  proper 
tillage  of  its  scattered  agricultural  valleys.  With  all  this  in 

22  Potlatch  etc.  Co.  v.  Peterson,  12  r  39  Wash.  648,  82  Pac.  150,  1  L. 
Idaho,  769,  118  Am.  St.  Rep.  233,  88  R.  A.,  N.  S.,  842,  4  Ann.  Cas.  987. 
Pac.  426.  2  Helena    etc.    Co.    v.     Spratt,    35 

23  100  Me.  35i,  109  Am.   St.  Eep.  Mont.   108,  88  Pac.   773,  8  L.  R.  A., 
526,  61  Atl.  785,  70  L.  R.  A.  472.  N.  S.,  567,  10  Ann.  Cas.  1055. 

24  27  Utah,  158,  101  Am.  St.  Rep.  3  But  as  to  the  New  England  Mill 
953,  75  Pac.  371,   1  L.  R.  A.,  N.  S.,  acts     see     Blackstone     Mfg.     Co.     v. 
208,  1  Ann.  Cas.  300.  Town  of  Blackstone,  200  Mass.  82,  85 

25  Clark  v.  Nash,  198  U.  S.  361,  25  N.   E.  880,   18  L.  R.  A.,  N.   S.,   755, 
Sup.  Ct.  Rep.  676,  49  L.  Ed.  1085,  4  holding   that    these   acts    do   not   rest 
Ann.  Cas.  1174.  upon  principles  of  eminent  domain. 


660   (3ded.)     Pt.  III.     THE  LAW  OF  PRIOR  APPROPRIATION.         §609 

view,  it  was  expressly  declared  in  our  State  constitution  that  the 
use  of  water  by  private  individuals  for  the  purpose  of  irrigating 
their  lands  should  be  a  public  use."  And  concludes:  "We  are 
largely  influenced  in  so  holding  by  the  two  decisions  of  this  court 
hereinbefore  referred  to,  wherein  we  are  already  committed  to 
the  broad  and,  as  it  has  sometimes  been  called,  'statesman -like' 
view  of  this  question." 

In  the  Nebraska  cases  the  taking  was  by  corporations  propos- 
ing general  supply  and  hence  a  public  use  within  the  narrower 
d-efinition,  but  the  decisions  were  placed  on  the  broader  ground.4 
"The  development  of  a  system  of  irrigation  and  the  appropria- 
tion and  application  of  the  waters  of  the  streams  of  the  State 
for  the  purpose,  is  obviously  a  work  of  internal  improvement." 
And  again,  referring  to  statutes,  "Under  these  'Comprehensive 
provisions  the  legislature  could  have  intended  nothing  less  than 
that  in  the  construction  and  operation  of  irrigation  enterprises 
private  property  reasonably  necessary  for  the  conduct  of  the 
business  could  be  taken  and  appropriated  on  due  compensation 
by  the  exercise  of  the  power  and  right  of  eminent  domain." 

A  late  case  in  Washington  allowed  a  company,  for  its  own  land, 
to  condemn  a  right  of  way  for  its  ditch  across  private  land.  The 
company  takes  water  from  the  Spokane  River  in  Kootenai  County, 
Idaho,  five  miles  east  of  the  Washington-Idaho  line,  and  conveys 
it  nineteen  miles  to  its  land  holdings  in  Spokane  County,  Wash- 
ington. The  court  held  that  the  benefit  to  the  public  which  sup- 
ports the  exercise  of  the  power  of  eminent  domain  for  purposes 
of  this  character  is  not  necessarily  the  service  the  parties  seek- 
ing to  acquire  such  rights  may  be  compelled  to  render  to  the 
public  in  connection  therewith,  but  is  the  development  of  the 
resources  of  the  State,  and  the  increase  of  its  wealth  generally, 
by  which  its  citizens  incidentally  reap  a  benefit.  It  was  argued 
against  the  condemnor  that  its  purpose  was  buying  up  lands  in 

4  Crawford   v.   Hathaway,   67   Neb.  Parker,  59  Ga.  419;  Bradley  v.  New 

325,  108  Am.  St.  Rep.  647,  93  N.  W.  York  etc.  R.  Co.,  21  Conn.  294;  Great 

781,  60  L.  R.  A.  889.  Falls  Mfg.  Co.  v.  Fernald,  47  N.  H. 

Other  decisions  adopting  this  view  456;     Talbot    v.     Hudson,     16    Gray 

of  what  constitutes  a  public  use  are  (Mass.),  417;   Olmstead  v.  Camp,  33 

given   herewith.     As   cited   in   Helena  Conn.  532,  89  Am.  Dec.  221;  Boston 

etc.  Co.   v.   Spratt,  35  Mont.   108,  88  &  Roxbury  Mill  Co.   v.   Newman,   12 

Pac.  775,  8  L.  R.  A.,  N.  S.,  567,  10  Pick.  (Mass.)   467,  23  Am.  Dec.  622; 

Ann.  Cas.  1055,  viz.:  Aldridge  v.  Tus-  Scudder    v.    Trenton    Delaware    Falls 

cumbia  etc.  R.  Co.,  2  Stew.  (Ala.)  199,  Co.,  1  N.  J.  Eq.  694-728,  23  Am.  Dee. 

23  Am.  Dec.  307;  Todd  v.  Austin,  34  756. 
Conn.    78;    Hand    Gold    Min.    Co.    v. 


§610  Ch.  26.     EMINENT  DOMAIN.  (3ded.)661 

large  tracts  in  order  to  sell  them,  in  small  holdings,  but  the  court 
said:  "It  is  utterly  immaterial  what  the  purpose  of  the  company 
was  in  acquiring  the  lands  or  whether  it  proposes  to  farm  the 
lands  itself  or  proposes  to  sell  them  off  in  tracts  of  varying  size 
to  others.  The  fact  remains  that  the  company  owns  the  water 
and  owns  the  lands  proposed  to  be  irrigated,  and  that  their  irri- 
gation will  promote  the  public  good  by  a  means  intended  to  be 
fostered  by  our  constitution.  Of  course  it  acquired  the  lands 
with  intent  to  profit  by  their  use  or  sale.  That  is  only  exercis- 
ing a  right  incident  to  all  ownership  as  any  private  owner  may 
exercise  it."  Instead  of  such  a  plan  being  invalid  as  "specu- 
lative," it  would  seem,  on  the  contrary,  that  it  constituted 
actual  supply  and  distribution  to  the  public  who  buys  the  parcels, 
so  as  to  constitute  actual  public  service,  although  the  court,  as 
already  said,  treated  the  case  as  one  of  private  service.5 

A  late  Utah  case  says  the  principle  of  Clark  v.  Nash  applies  to 
forcing  a  prior  appropriator  to  change  his  apparatus  and  install 
appliances  such  as  to  permit  a  taking  of  surplus  water  by  a  later 
appropriator,  provided  the  latter  reimburses  the  cost  of  the  change.5* 

On  the  other  hand,  Clark  v.  Nash  is  held  not  to  apply  in  Wash- 
ington to  takings  for  private  manufacturing  purposes,6  nor  in 
California,  for  private  electric  power.7 

(3d  ed.) 

§  610.  In  California. — While,  as  has  been  said,  the  actual 
decisions  in  California  are  against  this  rule,  and  require  a  taking 
by  public  officials  or  those  in  the  position  of  public  agents,  sup- 
plying or  serving  the  public  or  a  class  thereof,  yet  there  is  ground 
for  considering  it  not  concluded.  In  Lux  v.  Haggin8  the  court 
considered  it  an  open  question,  though  somewhat  startling,  say- 
ing: "Whether,  in  any  supposable  instance,  the  public  has  such 
interest  in  a  use  which  can  be  directly  enjoyed  only  by  an  indi- 
vidual for  his  profit,  and  without  any  concomitant  duty  from 
him  to  the  public,  as  that  the  government  may  be  justified  in 

5  State  ex  rel.  Galbraith  v.  Superior       River  Co.,  39  Wash.  648,  82  Pac.  150, 
Court  (Wash.),  110  Pac.  429.  2  L.  E.  A.,  N.   S.,  842,  4  Ann.   Cas. 

5a  Salt     Lake      City     v.     Gardner  987. 

(Utah   1911),    114   Pae.    147.     There          7  Shasta  Power  Co.  v.  Walker,  149 

does  not  seem  to  have  been  any  statute  Fed.     568 ;     affirmed    in     Walker    v. 

so  providing,  however,  in  the  case.  Shasta   Power  Co.,   160   Fed.   856,  87 

6  State  ex  rel.  Galbraith  v.  Superior  C.  C.  A.  660. 

Court   (Wash.),  110  Pac.  429;   citing  8  69  Cal.  255,  10  Pac.  674. 

State  ex  rel.  Tacoma  etc.  Co.  v.  White 


662   (3d  ed.)     Pt.  III.     THE  LAW  OF  PEIOR  APPROPRIATION.         §  610 

employing  the  eminent  domain  power  for  the  use,  as  for  a  public 
use,  is  a  question  somewhat  startling,  but  which  is  not  involved 
in  the  decision  of  the  present  action.  In  case  further  legislation 
shall  be  deemed  expedient  for  the  distribution  of  waters  to  public 
uses,  we  leave  its  validity  to  be  determined  after  its  enactment, 
if  its  invalidity  shall  then  be  asserted."  And  elsewhere  saying: 
"It  may  be  that,  under  the  physical  conditions  existing  in  some 
portions  of  the  State,  irrigation  is  not,  theoretically,  a  'natural 
want,'  in  the  sense  that  living  creatures  cannot  exist  without  it; 
but  its  importance  as  a  means  of  producing  food  from  the  soil 
makes  it  less  necessary,  in  a  scarcely  appreciable  degree,  from  the 
use  of  water  by  drinking  it.  The  government  would  seem  to  have 
not  only  a  distant  and  consequential,  but  a  direct,  interest  in  the 
use;  therefore  a  public  use." 

Moreover,  in  Fallbrook  Irr.  Dist.  v.  Bradley9  the  supreme 
court  of  the  United  States  upheld  the  taking  by  California  irri- 
gation districts  on  this  ground  and  not  on  the  other  restricted 
ground,  saying:  "On  the  other  hand,  in  a  State  like  California, 
which  confessedly  embraces  millions  of  acres  of  arid  lands,  an 
act  of  the  legislature  providing  for  their  irrigation  might  well 
be  regarded  as  an  act  devoting  the  water  to  a  public  use,  and 

therefore  as  a  valid  exercise  of  the  legislative  power The 

fact  that  the  use  of  the  water  is  limited  to  the  landowner  is 
not,  therefore,  a  fatal  objection  to  this  legislation."  And  in 
conclusion  says:  "We  have  no  doubt  that  the  irrigation  of  really 
arid  lands  is  a  public  purpose,  and  the  water  thus  used  is  put 
to  a  public  use."  Further,  Clark  v.  Nash  was  relied  on  in  the 
Federal  court  of  the  circuit  in  which  California  lies,10  which  held 
that  under  peculiar  local  conditions  (in  Alaska)  private  mining 
is  a  use  for  which  a  ditch  right  of  way  may  be  condemned.11 

On  the  other  hand,  Clark  v.  Nash  was  said  in  one  case  12  not 
to  apply  to  use  in  California  for  power  purposes,  and  it  should 
be  noted  that  the  constitution  only  declares  the  use  of  water 
'"for  sale,  rental  or  distribution"  a  public  use.13 

9  164  U.  S.  117,  17  Sup.  Ct.  Rep.  n  Miocene  Ditch  Co.  v.  Jacobsen, 
56,  41  L.   Ed.   369.                                        146  Fed.  680,  77  C.  C.  A.  106. 

10  Under   Alaska   Code,   e.   22,   sec.  12  Shasta  Power  Co.  v.  Walker,  149 
204,  31   Stats.   522,   which  is  worded  Fed.  568,  affirmed  in  Walker  v.  Shasta 
very    close    to    the    provision    of    the  Power  Co.,  160  Fed.  856,  87  C.  C.  A. 
California    Code    of    Civil    Procedure,  660. 

section  1238,  and  probably  copied  is  See  infra,  sec.  1264.  See  a 
therefrom.  dictum  in  Logan  v.  Guichard  (Cal., 


§  611  Ch.  26.     EMINENT  DOMAIN.  (3d  ed.)   663 

(3d  ed.) 

§  611.  Statement  of  the  Rule  of  Clark  v.  Nash.— This  rule,  that 
private  enterprise  may  constitute  a  public  use,  cannot  be  accu- 
rately summed  up  in  merely  a  few  words;  but  from  the  above 
the  following  may  be  a  serviceable  summary:  The  situation  of  a 
State  and  the  possibilities  and  necessities  for  the  successful  prose- 
cution of  various  industries,  and  peculiar  condition  of  soil  or 
climate  or  other  peculiarities,  being  general,  notorious  and 
acknowledged  in  the  State  so  as  to  be  judicially  known  and 
exceptionally  familiar  to  the  courts  without  investigation — such 
conditions  justify  a  State  court  in  upholding  a  statute  authoriz- 
ing the  taking  of  another's  private  property  by  one  individual 
for  his  own  enterprise,  where  it  believes,  by  reason  of  the  above, 
that  such  a  taking  will,  through  its  contribution  to  the  growth 
and  prosperity  of  the  State,  constitute  a  public  benefit,  and  the 
supreme  court  of  the  United  States  will  follow  the  decision  of 
the  State  court  in  such  a  case. 

The  tendency  will  be  great  to  say  that  the  rule  has  by  Clark  v. 
Nash  become  established  that  private  property  may  now  be  con- 
demned for  the  private  use  of  another;  that  condemnation  is  no 
longer  restricted  to  public  use,  but  that  property  may  be  con- 
demned for  a  private  use.  That,  however,  is  far  from  true.  The 
theory  is  still  that  the  taking  is  for  a  public  use,  and  the  private 
enterprise  must  be  such  as,  because  of  pressing  and  universal 
necessity  growing  out  of  peculiar  natural  conditions  in  the  State, 
is  inferentially  a  use  for  the  welfare  of  the  public  at  large.  Where 
there  is  no  such  pressing  and  universal  necessity  and  no  such 
peculiar  natural  conditions,  the  private  enterprise  will  not,  under 
Clark  v.  Nash,  properly  constitute  a  use  for  which  condemnation 
will  lie,  as  was  said  by  way  of  dictum  in  Shasta  Power  Co.  v. 
Walker.14  There  Clark  v.  Nash  was  held  inapplicable,  to  a  case 
in  California  taking  land  for  a  water  ditch  for  purposes  of  a  light 
and  power  plant,  if  compulsory  service  to  the  general  public  is 
not  to  be  a  part  of  the  proposed  use,  and  private  service,  merely, 
is  primarily  intended.15 

March  21,  1911),  114  Pac.  989,  that      v.   Shasta   Power  Co.,   160  Fed.   856, 
one  cannot  comdemn  a  right  of  way       87  C.  C.  A.  660. 

for  an   irrigation   ditch  to  one's   pri-  15  This  was  said  by  Judge  Wolver- 

vate  farm.  ton  of  the  Oregon  District,  sitting  in 

u  149  Fed.  568,  affirmed  in  Walker      California  in   the   absence   of  Judge 

Morrow. 


664  (3d  eel.)     Pt.  III.     THE  LAW  OF  PRIOR  APPROPRIATION.         §  612 

As  at  length  set  forth  in  another  place,  it  is  only  under  stat- 
utes such  as  that  upheld  in  Clark  v.  Nash  that  one  may  enter 
another's  land  to  build  a  ditch  or  divert  water  without  his  con- 
sent for  one's  own  private  enterprise;  in  the  absence  of  such 
statute,  and  notice  to  the  landowner,  a  hearing,  and  payment  to 
him  of  just  compensation,  no  entry  on  private  land  will  be  lawful 
against  the  landowner.16 

(3d  ed.) 

§  612.  Practical  Results. — In  practical  results  this  system  of 
acquiring  rights  on  or  over  private  land  for  private  irrigation  by 
taking  another's  property  on  notice,  hearing  and  compensation, 
seems  to  the  writer  one  of  the  most  important  developments  in 
the  water  law.  Some  such  matter  has  been  urged  from  the  earliest 
days  in  the  West,  and  has  hitherto  given  great  difficulty.  In  early 
California  a  statute  giving  miners  a  right  of  entry  on  private  land 
of  agriculturists  was  held  unconstitutional,  even  though  amended 
to  require  the  giving  of  a  bond  for  damages ; 17  and  the  California 
law  has  in  all  ways  become  settled  against  any  interference  by  a 
water  user,  for  merely  his  own  private  ends,  with  land  or  rights 
in  private  hands  of  another.18  On  the  other  hand,  the  early  Colo- 
rado decisions  allowed  such  entry  for  ditch-building  even  without 
compensation,  and  statutes  to  that  effect  have  been  passed  in 
Colorado  and  other  of  the  ydunger  States.19  As  the  courts  of 
even  these  States  are  now  against  such  entry  under  any  circum- 
stances short  of  the  power  of  eminent  domain,20  the  principle  of 
Clark  v.  Nash  becomes  important  as  opening  a  practical  way,  by 
extending  the  right  of  eminent  domain,  to  the  solution  of  this 
difficulty  which  has  existed  throughout  the  history  of  the  water 
law. 

The  principle  is  a  considerable  departure  from  the  individual- 
istic attitude  of  the  common  law,  which  holds  an  individual's 

16  Supra,  sec.  221  et  seq.  mine  under  any  building  or  improve- 

17  Supra,  sec.  85.  ment,"  act  of  November  7,  1861,  Hol- 

18  Supra,  sees.  221,  259,  498  et  seq.,  lister's    Mines   of    Colorado,    303.     It 
502.     See  especially  Boggs  v.  Merced  was  also  strongly  urged  as  to  mining 
Co.,  14  Cal.  279,  10  Morr.  Min.  Rep.  in  the   early   days  in   California,   but 
334.  just  as  in  the  California  water  law,,  so 

19  Supra,  sec.  223  et  seq.  also  in  the  California  mining  law,  it 
As   in  the  water  law,   it  also   took       never  took  hold,  and  was  finally  and 

hold    in    the    early    Colorado    mining  once    for    all    disposed    of    by    Judge 

law,    a    statute    having    enacted    that  Field  in  Boggs  v.  Merced  Co.,  14  Cal., 

one    may,    upon    securing    the    owner  at  379,  10  Morr.  Min.  Rep.  334. 

against   damage,   "have  the   right  to  2(>  Supra,  sec.  224. 


§  613  Ch.  26.     EMINENT  DOMAIN.  (3d  ed.)   665 

property  inviolate  against  any  other  single  individual,  and  marks 
the  tendency  of  the  times  to  adopt  more  and  more  the  communal 
attitude  of  the  civil  law  as  noted  in  the  next  section.  Especially 
is  this  tendency  strong  in  the  law  of  waters,  which  is  in  its  nature 
a  thing  intimately  affecting  many  users  from  a  common  source, 
and  in  which  the  common  law  of  riparian  rights  is  itself  a  cor- 
relative (as  opposed  to  an  individualistic)  system. 

(3d  ed.) 

§  613.  Conditions  Imposed. — There  is  plenty  of  room  for  cau- 
tion in  applying  the  principle.  What  constitutes  "public  interest" 
or  "public  benefit"  may  be  very  difficult  to  determine  in  actual 
application,21  especially  when  the  public  has  no  share  in  the  actual 
use.  If  pressed  too  far,  in  the  development  of  their  private  estates 
men  of  means  could  gather  up  for  themselves  alone  the  water-rights 
of  their  poorer  neighbors,  and  condemnation  might  become  only  a 
question  of  how  strongly  one  man  may  covet  his  neighbor's  property. 
Consequently,  it  is  well  to  note  some  conditions  usually  imposed 
upon  condemnation  of  one  man's  right  for  another's  private  enter- 
prise. 

When  building  a  ditch  or  enlarging  another's  ditch  under  such 
statute,  it  is  on  the  theory  of  condemnation  for  a  public  use,  and 
the  various  restrictions  and  safeguards  of  the  law  of  eminent 
domain,  some  of  which  are  below  considered,  such  as  due  notice 
in  advance,  apply.  Specially  there  may  be  noted  that  the  statutes 
in  this  connection  usually  declare  that  no  enlargement  will  be 
allowed  in  the  absence  of  great  necessity,  nor  where  another  road 
is  practicable,22  and  in  building  a  new  ditch,  the  shortest  possible 
route  must  be  taken,  nor  must  a  new  one  be  built  where  an  old 
one  can  be  enlarged  with  the  same  efficacy.23  The  landowner 
must  have  due  notice  in  advance.24  In  condemnation  under  such 
a  statute  the  right  of  way  has  a  money  value  to  be  assessed  as 
damages,1  and  the  enlargement  must  be  made  without  requiring 
expenditure  or  work  on  the  part  of  the  original  ditch  owner.2  The 

21  See,  for  example,  Young  v.  Hin-  23  Ibid.,  and  Paxton  Co.  v.  Farmers' 
derlider  (N.  M.),  110  Pac.  1045.     See  Co.,  45  Neb.  885,  50  Am.  St.  Rep.  585, 
supra,  sec.  174,  and  infra,  sec.  649.  64  N.  W.  343,  29  L.  R.  A.  853. 

22  Downing  v.  More,  12f  Colo.  316,  24  Sterritt  v.  Young,  14  Wyo.  146, 
706,   20   Pac.   766      (holding  enlarge-  116   Am.   St.   Rep.  994,   82   Pac.   946, 
ment  applies  only  to  through  ditches,  4  L.  R.  A.,  N.  S.,  169. 

and  not  to  ditches  wholly  within  pri-  1  Sand  Creek  etc.  Co.  v.  Davis,  17 

vate  bounds)  ;    Tripp  v.  Overacker,  7       Colo.  326,  29  Pac.  742. 
Colo.  73,  1  Pac.  695.  2  Ibid. 


666  (3d  ed.)     Ft.  III.     THE  LAW  OF  PRIOR  APPROPRIATION.         §  614 

enlarger  must  bear  the  cost,  and  pay  damages  to  the  man  whose 
ditch  is  enlarged  or  over  whose  land  it  runs.3  Whether  the  ditch 
of  a  competing  company  may  be  enlarged  by  its  competitor, 
quaere* 

Some  typical  statutory  expressions  of  these  conditions  are  men- 
tioned in  the  note.5 

(3d  ed.) 

§  614.    The  French  Irrigation  System. — In  a  matter  so  newly 

established  and  just  developing,  and  at  the  same  time  so  far-reach- 
ing, it  is  interesting  to  note  the  experience  of  other  countries. 
The  basic  civil  law  is  that  of  riparian  rights,  but  it  has  been  sup- 
plemented by  an  extensive  use  of  the  power  of  eminent  domain 
along  the  lines  of  Clark  v.  Nash.  In  France  two  statutes  were 
passed  upon  these  lines  which  form  the  basis  of  most  of  the  French 
irrigation  law,  and  seem  to  have  been  borrowed  in  Italy. 

The  first  French  statute,  passed  April  29,  1845,  provided  for  ob- 
taining water  against  riparian  owners,  and  rights  of  way  for  canals 
over  private  land,  for  another's  private  irrigation,  upon  paying 
compensation  to  be  fixed,  after  a  hearing,  by  public  authorities. 
The  first  two  sections  are  quoted  (translated)  in  the  note.6  This 

3  Clark  v.  Nash,  198  U.  S.  361,  25  In    Nebraska,    "No    tract    of    land 

Sup.  Ct.  Rep.  676,  49  L.  Ed.  1085,  4  shall   be   crossed    by    more   than    one 

Ann.    Gas.   1174;    Sand   Creek   Co.   v.  ditch,    canal,    or    lateral    without    the 

Davis,  17  Colo.  326,  29  Pac.  742;  Pat-  written  consent  and  agreement  of  the 

terson  v.  Brown  etc.  Ditch  Co.,  3  Colo.  owner  thereof,  if  the  first  ditch,  canal, 

App.  511,  34  Pac.  769;  Salt  Lake  City  or  lateral  can  be  made  to  answer  the 

v.    Gardner    (Utah,    1911),    114   Pac.  purpose   for  which  the  second  is   de- 

147.  sired    or    intended."     Cobbey's    Ann. 

The  writer  is  informed  of  a  case  in  Stats.,  sec.  6730  or  6750. 

Utah  where  the  damages  upon  enlarge-  6  "Article  1.     Every  proprietor  who 

ment    were    assessed    by    a    jury    at  may  wish  to  be  served  for  the  irriga- 

seventy-five  thousand  dollars.  tion  of  his  property  with  the  natural 

*  Infra,  sec.  615.  or  artificial  waters  of  which  he  has 

5  In  Colorado,  condemnation  for  a  the  right  to  dispose,  can  obtain  the 
private  right  of  way  for  a  new  ditch,  passage  for  these  waters  over  inter- 
or  enlargement  of  an  old  one  or  mediate  lands  by  previously  paying  a 
change  of  point  of  diversion  so  re-  just  indemnity.  There  are  excepted 
quiring,  must  be  upon  due  notice  and  from  this  servitude  houses,  pleasure 
compensation,  not  more  than  one  ditch  grounds,  gardens,  parks,  and  inclos- 
being  built  where  enlargement  of  ex-  ures  belonging  to  dwellings."  "Article 
isting  ditches  is  possible,  and  the  2.  The  proprietors  of  lower  lands 
shortest  route  must  be  taken.  Colo.  will  have  to  receive  the  waters  which 
Rev.  Stats.  1908,  sees.  3167-3174;  Gen.  percolate  from  lands  thus  irrigated; 
Stats.,  sees.  1712-1721;  Gen.  Stats.,  being  indemnified,  however,  if  dam- 
sees.  1373-1376;  Rev.  Stats.,  sec.  363;  aged.  Houses,  pleasure  grounds,  gar- 
Laws  1861,  p.  67;  Laws  1870,  p.  158;  dens,  parks,  and  inclosures  belonging 
Laws  1879,  p.  95;  Laws  1881,  pp.  161,  ,  to  dwellings  will  be  equally  excepted 
164.  from  this  servitude." 


§  614  Ch.  26.     EMINENT  DOMAIN.  (3d  ed.)   667 

right  is  confined  to  building  new  ditches,  and  does  not  extend  to 
enlarging  an  existing  canal,  nor  does  it  apply  to  any  'uses  other 
than  irrigation,  and  there  must  be  a  substantial  benefit  to  the  party 
initiating  such  work,  outweighing  the  inconvenience  to  the  servi- 
ent  estate.7  The  servient  owner  has  no  right  to  share  in  the  use 
of  such  waters  in  their  passage  over  his  land,  a  law  to  so  permit  him 
having  been  defeated.8 

The  second  French  statute  was  passed  July  11,  1847,  and  gave 
a  right  to  build  dams  on  the  banks  of  a  stream  on  another's  land, 
similar  to  the  right  conferred  in  the  former  statute  for  ditches  and 
subject  to  much  the  same  terms.  Article  2,  however,  provided  for 
the  joint  use  of  such  dam  by  the  man  constructing  it  and  the 
landowner  on  whose  land  it  is  built,  saying:  "The  riparian  owner 
of  the  lands  upon  which  the  right  will  have  been  claimed  can 
always  demand  the  common  usage  of  the  dam  by  contributing  one- 
half  of  the  expenses  of  the  establishment  and  maintenance  of  it. 
Any  indemnity  will  not  be  due  in  this  case,  and  if  any  has  been 
paid  it  must  be  returned.  When  this  common  usage  will  only  be 
claimed  after  the  commencement,  or  the  completion  of  the  works, 
the  payment  which  the  second  proprietor  will  have  to  make  in 
order  to  have  the  right  to  use  it,  will  only  be  that  amount  which 
it  is  necessary  to  expend  in  order  to  make  it  available  for  taking 
out  water  on  his  bank."9 

Provisions  similar  to  these  statutes  are  contained  in  the  codes 
of  Sardinia  10  and  Lombardy,11  neither  being  limited  to  use  for 
irrigation,  however.  In  the  former  it  is  further  provided  that 
the  ditch-builder  must  show  first  that  he  has  a  water-right  suffi- 
cient for  his  land  when  carried  there;  that  he  has  chosen  the  line 
of  least  possible  damage  to  the  landowner  consistent  with  the 
circumstances;  that  payment  must  be  made  in  advance,  covering 
all  probable  damages,  including  the  damage  due  to  thus  dividing 
the  servient  estate  into  two  parts,  or  other  general  deterioration 
in  value,  and  including  in  addition,  as  a  kind  of  bonus,  one- 
fifth  of  the  final  estimate ;  that  if  the  right  is  asked  for  a 
period  of  less  than  nine  years  the  compensation  is  reduced  one- 

7  Droit-  Civile  Francais,  by  Aubrey  8  Ibid.,  p.  18. 
&  Rau,  4th  ed.,  vol.  Ill,  pp.  13,  17. 

Within  the  last  few  years  there  has  9  ***,  also,  Aubrey  &  Eau,  ut  supra, 

been  a  movement  to  extend  the  acts  P* 

to    power    development    also.     Water  10  Articles  622  to  640. 

Supply  Paper  238,  U.  S.  Geol.   Sur-  u 


C68   (3ded.)     Pt.  III.     THE  LAW  OF  PEIOR  APPROPRIATION.         §614 

half,  subject  to  the  duty  at  the  end  thereof  to  restore  the  servient 
estate  to  i'ts  original  condition;  and  numerous  other  provisions. 
The  Lombardy  Code  is  much  the  same,  but  shorter;  the  bonus  here 
is  one-fourth  in  excess  of  estimated  damage. 

These  statutes  are  similar x to  that  considered  in  Clark  v.  Nash 
in  that  they  allow  ditch-building  over  private  land  for  another's 
private  irrigation,  by  exercise  of  the  power  of  eminent  domain. 
They  do  not,  however,  allow  the  enlarging  of  existing  canals,  as 
did  the  statute  in  Clark  v.  Nash,  because  it  seems  to  have  been 
found  unsatisfactory  by  experience.  One  commentator  says :  "The 
power  of  acquiring  a  right  of  way  for  waters  through  existing 
canals,  which,  as  we  have  seen,  was  admitted  by  the  ancient  legis- 
lation of  Piedmont,  has,  for  good  reasons,  been  left  out  in  the 

formation  of  the  new  code The  authors  of  this  code  found, 

with  reason,  that  it  was  unjust  to  impose  upon  proprietors  the 
obligations  to  receive  strange  waters  into  their  canals,  races,  or 
ditches,  as  experience  had  proven  that  such  mingling  as  resulted 
therefrom  seldom  failed  to  lead  to  litigation,  disastrous  to  all 
interests."  12 

This  matter  in  the  civil  law  rests  upon  the  power  of  eminent 
domain,  very  similar  to  Clark  v.  Nash.  It  is  a  principle  of  civil 
law  as  much  as  common  law  that  private  property  shall  not  be 
taken  for  public  use  without  just  compensation,  but  that  has  not, 
in  civil-law  countries,  the  binding  force  which  it  has  in  this  country, 
where  it  is  contained  in  constitutions,  and  these  European  statutes 
take  a  wide  scope  in  allowing  condemnation  for  private  purposes.13 

12  De   Buffon   on   Agriculture,   vol.  pecially  recorded  its  opinion  that  the 

II,  p.  329.  law  was  one  of  great  severity.     It  is 

Another  commentator  likewise  says :  also  recorded  that  there  was  scarcely 

"The  vexed  question  of  the  right  of  ever  a  single  case  in  which  the  results 

passage    through    previously    existing  of  the  union  in  the  same  canal,  and 

channels  has  been  very  judiciously  dis-  the  subsequent  division  of  the  water 

posed  of  by  the  Sardinian  legislation.  belonging  to  two  different  proprietors, 

To   have   continued   this  right  to   the  were   satisfactory   to   both."     (Smith, 

possessor    of    water    in    the    absolute  Italian  Irrigation,  vol.  II,  p.  270.) 

manner  established  by  the  ancient  leg-  In  regard  to  using  a  natural  stream 

islatioc  of  Piedmont  would,  as  exper-  to     convey     an    artificial    supply    of 

ience    had    already    shown,    have    led  water,    reference   is    made    to    a    pre- 

to    constant    and    harassing    disputes.  vious  chapter  '  (supra,  sec.  38  et  seq., 

The    edict    of    Charles    Emanuel,    on  recapture).     Our  concern  here  is  con- 

which     the     right     spoken     of     was  fined   to    enlarging   private   and   arti- 

founded,    had    been    followed    by    re-  ficial  waterways. 

peated  lawsuits;  and  though  the  judi-  13  It  may  be  remarked  that  the  con- 

cial  tribunals  had  necessarily  decided  tinental    European    countries    do    not 

all  cases  in  accordance  with  its  pro-  confine  it  to  waters.     One  may  there 

visions,  the   Senate  of  Turin  had  es-  likewise  enter  private  land  to  search 


615 


Ch.  26.     EMINENT  DOMAIN. 


(3ded.)  669 


(3d  ecf.) 

§  615.  Procedure  and  Miscellaneous. — Condemnation  proceed- 
ings for  a  right  of  way,  however,  must  be  on  proper  notice  and 
compensation,  and  a  statute  authorizing  entry  otherwise  is  uncon- 
stitutional.14 

The  acquisition  of  rights  by  condemnation  and  by  appropriation 
are  entirely  different,15  and  the  statutes  for  posting  notice,  filing 
maps,  etc.,  regarding  appropriation  have  no  application  to  con- 
demnation unless  the  statutes  expressly  so  declare.16 

A  water-right  and  a  ditch  right  may  be  condemned  separately.17 
It  has  been  held  that  a  water-right  must  be  first  acquired  before 
condemning  for  a  ditch,18  but  the  contrary  has  also  been  held.19 

Damages  on  condemnation  of  land  for  an  irrigation  canal  or 
reservoir  may  cover  injury  from  probable  seepage;20  upon  con- 
demnation of  a  water-right,  evidence  of  condition,  improvement, 
and  productivity  of  land  is  admissible  to  show  damages.21  The 
necessity  for  a  taking  must  be  determined  before  damages  are 


for  and  work  mines,  upon  payment  of 
damages,  the  right  to  authorize  this 
ilowing  from  the  "Eegalian  doctrine" 
of  mines  t'hat  exists  in  the  civil  law. 
See  Yale  on  Mining  Claims  and  Water 
Eights,  p.  44  et  seq. 

14  Sterritt  v.  Young,  14  Wyo.  146, 
116   Am.   St.   Rep.   994,  82  Pac.  946, 
4  L.  R.  A.,  N.  S.,  169. 

15  State    ex   rel.    Kettle    Falls   etc. 
Co.  v.  Superior  Court,  46  Wash.  500, 
90  Pac.  653. 

16  Apply  to  condemnation  of  right 
of  way  for  ditches  by  special  Wash- 
ington statute.     State  ex  rel.  Kettle 
Palls   etc.   Co.   v.   Superior   Court,   46 
Wash.  500,  90  Pac.  653. 

Quaere,  whether  Cal.  Civ.  Code, 
1415,  as  amended  in  1907  (see  stat- 
utes) so  enacts. 

17  Schneider  v.  Schneider,  36  Colo. 
518,  86  Pac.  348. 

18  Castle  Eock  etc.  Co.  v.  Jurisch, 
67  Neb.  377,  93  N.  W.  690.     See  Cal. 
Stats.     1885,    p.    95,    semble     accord. 
Compare  Cal.  Civ.  Code,  sec.  1415,  as 
amd.    in    1907.     Cf.    also,    Nippel    v. 
Forker,    26    Colo.    74,    56    Pac.    577; 
O'Eeiley  v.  Noxon   (Colo.),   113  Pac. 
486. 

In  Washington,  water  companies  for 
city  supply,  before  they  can  condemn 
water-rights,  must  show  that  they  have 


obtained  from  the  city  the  privilege 
of  supplying  it,  and  that  defendant 
refused  to  supply  the  city  himself. 
State  ex  rel.  Shropshire  v.  Superior 
Court  (1909),  51  Wash.  386,  99  Pac. 
3. 

19  Schneider  v.  Schneider,  36  Colo. 
518,  86  Pac.  347;  Prescott  Irr.  Co.  v. 
Flathers,  20  Wash.  454,  55  Pac.  635; 
State  ex  rel.  Kettle  Falls  etc.  Co.  v. 
Superior    Court,    46    Wash.    500,    90 
Pac.  653. 

20  Middelkamp    v.     Bessemer     etc. 
Co.    (1909),   46   Colo.    102,    103    Pac. 
280,  23  L.  E.  A.,  N.  S.,  795,  dictum. 

21  Benninghoff   v.    Town    of   Palis- 
ade (Colo.),  108  Pac.  983. 

As  to  measure  of  damages  on  emi- 
nent domain,  see,  also,  Denver  Co.  v. 
Midaugh,  12  Colo.  434,  13  Am.  St. 
Eep.  234,  21  Pac.  565;  Cal.  Code  Civ. 
Proc.,  sec.  1248. 

It  has  been  held  that  the  presence  of 
percolating  water  was  not  an  element 
that  could  be  considered  in  estimating 
the  value  of  property  taken  on  emi- 
nent domain.  (City  of  Los  Angeles 
v.  Pomeroy,  124  Cal.  597,  57  Pac. 
585.)  But  the  rule  may  be  different 
under  the  recent  modification  of  the 
law  of  percolating  waters.  (Infra, 
sec.  1039  et  seq.) 


670  (3ded.)     Pt.  III.     THE  LAW  OF  PRIOR  APPROPRIATION.         §615 

assessed.22  There  is  no  right  to  a  jury  unless  by  express  statute.23 
The  statutes  of  Idaho  do  not  contain  such  provisions,24  but  it  is 
usually  contained  in  other  States.25  A  decree  of  condemnation 
must  provide  that  the  money  shall  be  paid  to  the  clerk  of  the  court 
before  work  upon  the  ditch  shall  be  commenced.1  The  condemnor 
may  take  possession  upon  tender  to  defendant  or  payment  into 
court  of  the  damages  assessed  on  eminent  domain.2 

In  California  it  has  been  said:  "It  seems  not  to  be  important 
whether  the  corporation  through  whose  instrumentality  the  object 
is  to  be  obtained  be  a  domestic  or  foreign  corporation."3  In  a 
recent  Montana  case  the  contrary  was  held,4  but  this  was  imme- 
diately changed  by  statute.5  In  Alaska  it  has  been  held  that  a 
California  corporation  cannot  exercise  the  power  of  eminent 
domain.6  The  United  States  may  condemn  only  under  State  law 
for  the  Reclamation  Service.7  A  corporation  organized  for  com- 
mercial purposes,  essentially  private,  cannot  exercise  the  power 
of  eminent  domain,  though  also  offering  to  supply  the  public  at 
the  same  time.8  But  where  organized  for  purposes  primarily 
public,  claiming  to  condemn  water-rights  for  purposes  both  public 
and  private,  a  decree  allowing  condemnation  may  be  made,  but 
it  will  not  carry  any  sanction  of  the  private  use,  which  may  be 
prevented  in  subsequent  proceedings.9  The  fact  that  articles  of 

22  Portneuf     Irr.     Co.     v.     Budge  Rep.  174,  46  S.  E.  422 ;  Vanderpoel  v. 
(1909),  16  Idaho,  116,  100  Pae.  1046.  Gorman,   140  N.   Y.  563,  37  Am.  St. 

23  Ibid.  Rep.  601,  35  N.  E.  932,  24  L.  R.  A. 

24  ibid.  548;  South  Yuba  Water  Co.  v.  Rosa, 

25  E.    g.,    California   and   Colorado  80  Cal.  333,  22  Pac.  222  (which,  how- 
Constitutions,  quoted  supra,  sec.  605.  ever,  is  not  in  point) ;   Rumbough  v. 

1  Fulton    v.    Methow    etc.    Co.,    45  Southern  Im.  Co.,  106  N.  C.  461,  11 
Wash.  136,  88  Pac.  117.     For  a  ques-  S.   E.  528 ;   Postal   Tel.   Co.  v.  Cleve- 
tion    of     procedure    in     Oregon,    see  land  etc.  Ry.  Co.  (C.  C.),  94  Fed.  234. 
Grande   Ronde   etc.   Co.  v.   Drake,  46  But  limiting  its   decision  to   corpora- 
Or.  243,  78  Pac.  1031.  tions  of  the  character  of  the  respond- 

2  Portneuf      Irr.      Co.      v.     Budge  ent  in  the  principal  case. 

(1909),  16  Idaho,  116,  100  Pac.  1046.  5  Spratt  v.  Helena  Co.,  37  Mont.  60, 

Costs  of  appeal  should  not  be  upon  de-  94  Pac.  631. 

fendant,  as  it  would  deprive  him  of  «  Miocene  D.  Co.  v.  Lyng,  2  Alaska, 

full  value  for  his  property.     Portneuf  265. 

Co.  v.  Portneuf  Co.  (Idaho),  114  Pae.  7  United   States  v.   Burley    (Idaho. 

19.  1909),  172  Fed.  615;   Same  v.   Same 

3  Gilmer    v.    Lime     Point,    18    Cal.  (1910),  179  Fed.  1,  102  C.  C.  A.  429. 

251.     Accord,  Kirk  etc.  Co.  v.  Amer-       See  Mont.  Stats.  1905,  p.  (House 

ican  Assn.,   128   Ky.   668,   108  S.  W.  Bill  No.  219). 

232.  8  State  ex  rel.  Tolt  Power  etc.  Co 

4  Helena     etc.    Co.    v.    Spratt,     35       v.    Superior   Court,   50   Wash.    13,   96 
Mont.   108,  88  Pac.  773,  8  L.  R.  A.,       Pac.  519. 

N.  S.,  567,  10  Ann.  Gas.  1055,  citing  9  State  ex  rel.  Shropshire  v.  Supe- 

Chestatee  Pyrites  Co.  v.  Cavenders  rior.  Court  (1909),  51  Wash.  386,  99 
Cr.  M.  Co.,  119  Ga.  354,  100  Am.  St.  Pac.  3. 


§  615  Ch.  26.     EMINENT  DOMAIN.  (3d  ed.)  671 

incorporation  include  incidental  private  uses  with  the  public  one 
will  not  bar  condemnation,  since  the  right  acquired  thereby  extends 
only  to  the  public  uses  alone.10 

Condemnation  may  be  made  of  property  already  devoted  to 
public  use,  for  a  more  necessary  public  use.11  Irrigation  rights 
may  be  condemned  to  furnish  a  city  water  supply.12  Land  may 
be  condemned  for  a  reservoir,  though  containing  a  public  highway, 
the  reservoir  being  a  more  necessary  public  use.13  As  to  how  far 
condemnation  will  lie  for  water  already  devoted  to  a  public  use, 
quaere.14  Between  two  rival  public  service  corporations,  the  one 
first  started  may  condemn  the  water-rights  of  a  later  one,  where 
only  one  is  possible.15  One  irrigation  company  may,  by  con- 
demnation under  such  statutes  as  that  upheld  in  Clark  v.  Nash, 
enlarge  the  canal  of  another  company,  so  as  to  make  it  do  the 
service  of  both;  that  is,  to  irrigate  the  two  thousand  five  hundred 
acres  of  the  existing  company  and  an  additional  twenty  thousand 
acres  to  be  supplied  by  the  new  company.16  Relative  necessity 
is  not  measured  by  the  extent  of  the  relative  uses.  The  irrigation 
of  a  greater  area  is  not  per  se  a  more  necessary  use.17 

The  fact  that  water-rights  and  ditch  rights  sought  on  eminent 
domain  may  conflict  with  the  rights  of  other  appropriators  who 
are  not  parties  to  the  action  cannot  be  raised.18  The  rights  of 
strangers  to  the  suit  cannot  be  allowed  to  influence  condemnation 

10  Walker  v.  Shasta  Power  Co.,  160  Luis  Co.  v.  Kenilworth  Co.,  3  Colo.  App. 
Fed.   856,  87  C.  C.  A.   660.     But  cf.  244,  32  Pac.  860;  Salt  Lake  etc.  Co.  v. 
Hercules  W.  Co.  v.  Fernandez,  5  Cal.  Salt  Lake  City,  25  Utah,  441,  71  Pac. 
App.  726,  91  Pac.  401,  holding  that  a  1067;   Eeclamation  Dist.   v.   Superior 
complaint     to    condemn    water-rights  Court,  151  Cal.  263,  90  Pac.  545   (al- 
to supply  specified  towns  "and  other  lowing  condemnation  of  a  reclamation 
places"    is    defective,    since    "other"  levee  for  a  railway  roadbed).     Port- 
places  would  include  uses  not  public  neuf    Irr.    Co.    v.    Budge    (1909),    16 
uses.  Idaho,  116,  100   Pac.   1046   (allowing 

11  For    example,   see    Wyo.    Stats.  enlargement  of  irrigating  canal).    See, 
1909,  c.  68,  sec.  3.  also,   supra,   section   308,   as   to   what 

12  City    of    Helena    v.    Rogan,     26  are  preferred  uses. 

Mont.  452,  68  Pac.  798,  27  Mont.  135,  15  state  ex  rel.  Kettle  Falls  etc.  Co. 

69  Pae.  709.                 .  v.   Superior  Court,  46  Wash.  500,  90 

13  Marin    Co.    etc.     Co.    v.     Marin  Pac     653 .     State   v     Superior    Court 
County,  145  Cal.  586,  79  Pac.  282.  (1909),  53  Wash.  321,  101  Pac.  1094. 

See     also,    Junction    etc.    Co     v.  16  Portneuf     Irr      Co             Bud 

City  of  Durango,  21  Colo   194,  4(  Pac  (ig  g)          Idafa      nfi           p            * 

356   (condemnation  not  lie  by  city  to  J^      ;'Clark   v    Nash'    and    Railw    ' 
enlarge       company      ditch).      Denver 
etc..  Co.  v.  Denver  etc.  Co.,  30  Colo. 

204    69   Pac.   568,   60   L.   R.    A.   383  17  Portneuf     Irr.     Co.     v.     Budge 

(concerning  condemnation  of  railway  (1909),  16  Idaho,  116,  100  Pac.  1046. 

for    reservoir).     Sand    Creek    Co.    v.  18  Schneider  v.  Schneider,  36  Colo. 

Davis,  17  Colo.  326,  29  Pac.  742;  San  518,  86  Pac.  348. 


672  (3d  ed.)     Ft.  III.     THE  LAW  OF  PRIOR  APPROPRIATION.         §  616 

proceedings.19  To  secure  a  right  to  a  whole  stream,  condemna- 
tion must  be  made  of  all  rights  from  source  to  mouth  and  not 
merely  of  those  above  (or  below)  the  point  of  diversion.20 

The  right  of  condemnation  for  a  ditch  is  not  lost  from  the  fact 
that  water  might  be  put  upon  the  land  in  some  other  way,  as  by 
a  pump,21  especially  if  not  pleaded ; 22  nor  from  the  fact  that 
without  irrigation  the  land  might  still  have  some  agricultural 
value.23 

In  Nebraska  the  condemnation  procedure  follows  that  of  con- 
demnation by  railroads.24 

Condemnation  of  land  for  sewage  purposes  does  not  necessarily 
include  a  right  to  send  sewage  into  a  stream  on  the  land.25 

Section  1415  of  the  California  Civil  Code  as  amended  in  1907  1 
is  difficult  to  understand,  but  seems  to  fix  a  statute  of  limitations 
of  sixty  days  after  posting  a  notice  of  appropriation,  within 
which  to  begin  condemnation  proceedings.  This  feature  is  dropped, 
however,  in  an  amendment  in  1911. 

Some  questions  peculiar  to  condemnation  of  riparian  rights  are 
considered  in  a  later  chapter.2 

(3d  ed.) 

§  616.    A  Question  of  Procedure.— Mr.  Mills3  remarks:  "It 

would  seem,  however,  that  in  instances  where  the  stream  system 
is  of  considerable  size  and  the  number  of  riparian  proprietors 
who  would  be  affected  by  a  diversion  of  water  is  large,  the  pro- 
ceedings to  condemn  their  respective  rights  and  compensate  each 
for  his  injury  or  loss  of  the  flow  of  the  stream  would  be  of  such 

19  Denver   etc.   Co.   v.   Denver   etc.  case  out  of  the  general  rule  that,  in 
Co.,   80    Colo.   204,    69   Pac.   568,   60  the  absence  of  bad  faith,  the  judg- 
L.  R.  A.  383 ;  Walker  v.  Shasta  Power  ment  of  the  party  exercising  the  right 
Co.  (Cal.),  160  Fed.  856,  87  C.  C.  A.  of   eminent   domain   as   to   what   and 
660  (no  defense  to  condemnation  that  how  much  land  shall  be  taken  is  con- 
plan  cannot  be  successful  because  of  elusive."     United     States     v.    Burley 
outstanding  rights  also  requiring  con-  (Idaho),    172    Fed.    615,    affirmed   in 
demnation).     See  infra,  sec.  627.  179  Fed.  1,  102  C.  C.  A.  429. 

20  In  re  Board  of  Water  Supply,  23  State    ex  -rel.  Galbraith    v.  Su- 
58  Misc.  Rep.  581,  109  N.  Y.  Supp.  perior  Court  (Wash.),  110  Pac.  429. 
1036.  24  Crawford  v.  Hathaway,  67  Neb. 

21  State    ex    rel.    Galbraith   v.    Su-  325,  108  Am.  St.  Rep.  647,  93  N.  W. 
perior  Court  (Wash.),  110  Pac.  429.  781,    60   L.    R.    A.    889.     See     Comp. 

22  "Whether,  as  has  been  suggested,  Stats.  1901,  art.  2,  sec.  41,  art.  3,  sec. 
an  equally  feasible,  or  more  feasible,  10. 

scheme   might    not    be    devised,    and  25  Semble,  Village  of  Twin  Falls  v. 

whether     some     other     reservoir     site  Stubbs,  15  Idaho,  68,  96  Pac.  195. 

might  not  be  selected,  are  immaterial  1  See  infra,  statutes, 

inquiries.     The     record     discloses     no  2  Infra,  sec.  864  et  seq. 

circumstances  or  conditions  taking  the  3  Mills'  Irrigation  Manual,  p.  276. 


§616  Ch.  26.     EMINENT  DOMAIN.  (3ded.)673 

magnitude  and  so  expensive  as  to  practically  bar  the  appropriator 
from  attempting  it."  Such  a  case  may  arise  where  a  water  com- 
pany seeks  to  acquire  a  stream  for  the  supply  of  a  city.  Condemna- 
tion proceedings  may  be  instituted  against  perhaps  fifty  defendants 
(riparian  owners)  below  the  point  of  diversion,  but  such  condemna- 
tion would  be  inadequate  because  it  ignores  the  riparian  proprietors 
upon  the  upper  half  of  the  stream  and  would  not  destroy  their  right 
of  use  on  their  own  lands,  and  hence  would  not  secure  to  the  com- 
pany the  exclusive  right  to  the  whole  stream  which  it  sought.  To 
secure  the  exclusive  right  to  the  entire  stream  would  necessitate  the 
condemnation  of  riparian  rights  from  source  to  mouth.4  The  same 
is  true  under  the  new  law  of  percolating  water.  And  it  is  no  less 
true  of  appropriative  water-rights;  for  condemnation  of  all  ap- 
propriations below  the  point  of  diversion  of  a  proposed  public  use 
would  not  affect  the  rights  of  any  of  the  appropriators  upon  the 
rest  of  the  stream  above  the  point  of  diversion ;  to  obtain  the  right 
to  an  entire  stream  in  an  appropriation  jurisdiction  it  is  equally 
necessary  to  condemn  all  rights  from  source  to  mouth.5 

Since  water-rights  (whether  riparian  or  appropriative)  may  be 
condemned  for  a  public  use  on  eminent  domain  proceedings,  and 
since  the  important  and  large  enterprises  are  usually  for  purposes 
which  are  public  uses  (especially  in  view  of  the  decision  in 
Clark  v.  Nash  above  considered,  that  the  taking  may  in  some 
cases  and  under  certain  circumstances,  be  for  an  individual's 
private  enterprise  alone,  and  not  necessarily  for  general  supply), 
anything  which  facilitates  condemnation  is  likely  to  be  eagerly 
resorted  to.  And  there  is  a  tendency  to  allow  a  short  cut  to 
condemnation  which,  if  generally  adopted,  will  likely  give  rise 
to  a  system  of  condemnative  water-rights  in  a  class  by  itself. 

The  principle  in  question  is  that  the  special  proceedings  for 
condemnation,  which  are  cumbersome  and  lengthy  and  expensive, 
need  not  be  followed.  In  the  law  of  eminent  domain,  wherever 
the  special  proceedings  are  necessary  and  not  followed,  equity 
will  enjoin  simply  because  the  taking  of  a  man's  property  is  an 
extraordinary  proceeding  which  must  be  done  by  the  prescribed 
method  strictly  or  not  at  all.  But  there  is  a  line  of  decisions 
concerning  railroads  holding  that  such  injunction  will  be  refused 

4  See,  for  example,  In  re  Board  of          5  Infra,  sec.  626  et  seq. 
Water  Supply,  58  Misc.  Rep.  581,  109 
N.  Y.  Supp.  1036. 

Water  Bights — 43 


674   (3ded.)     Pt.  III.     THE  LAW  OF  PRIOR  APPROPRIATION.         §617 

when  the  acts  complained  of  are  not  a  taking  of  property  but 
a  collateral  damaging  of  it,  such  as  where  property  values  along 
a  railroad  decrease  because  of.  the  noise,  smoke  or  other  similar 
matters.  In  such  cases  the  injunction  to  stop  the  running  of  the 
railroad  until  the  eminent  domain  formalities  are  complied  with 
is  frequently  refused,  and  the  damages  to  the  property  owners 
are  instead  assessed  in  the  injunction  suit.* 

This  is  now  fairly  well  established  in  the  law  of  water-rights 
of  all  kinds.  Since  constitutions  usually  provide  that  private 
property  cannot  be  taken  for  public  use  without  compensation, 
damages  must  be  paid;  but  relief  by  injunction  against  one  who 
has,  at  great  expenditure,  actually  diverted  water  from  its  owner 
for  public  use,  is  refused  after  expenditure  has  been  incurred 
and  public  necessity  has  arisen,  although  condemnation  proceed- 
ings were  never  instituted. 

(3d  ed.) 

§  617.     Same. — The  authorities  are  cited  and  a  more  particular 

presentation  is  made  in  a  later  section  under  the  topic  of  injunc- 
tions.7 Something  may  be  said  here  as  to  the  things  which  sug- 
gest themselves  in  its  bearing  upon  taking  property  for  public  use. 

Since  the  constitutional  provision  says  property  cannot  be 
taken  for  public  use  until  damages  are  ascertained  and  paid, 
the  rule  under  consideration  does  not  technically  pass  any  prop- 
erty by  refusing  the  injunction;  but  there  are  some  Nebraska 
cases  considering  it  as  recognizing  an  actual  property  to  the 
diversion  which  would  support  an  affirmative  action  of  injunc- 
tion and  to  quiet  title  against  the  real  owner  without  paying  dam- 
ages.8 The  court  relegated  the  owner  to  a  separate  action  for  dam- 
ages. So  that  the  foregoing  principle  seems  to  be  carried  to  the 
extent  in  Nebraska  that  the  burden  in  condemnation  is  thrown  upon 
owners  to  sue  for  their  compensation  instead  of  for  the  eondemnor  to 
sue  for  the  property.9 

The  Nebraska  cases  further  construed  the  rule  in  a  way  which 
makes  the  Board  of  Irrigation  the  condemnation  tribunal  instead 

6  See  Fresno  etc.  Co.  v.  S.  P.  Co.,  781,  60  L.  R.  A.  889;  McCook  irr.  Co.. 
135  Cal.  202,  67  Pac.  773;   Southern  v.  Crews,  70  Neb.  115,  102  N.  W.  249; 
Ry.  Co.  v.  Slauson,   138  Cal.  342,  94  Cline  v.  Stock,  71  Neb.  70,  98  N.  W. 
Am.  St.  Rep.  58,  71  Pac.  352.  454,  102  N.  W.  265. 

7  Infra,  sec.  651.  9  The  principle  is  avowedly  stated 

8  Crawford   v.   Hathaway,   67   Neb.  as  one  of  procedure  only.     "The  ques- 
325,  108  Am.  St.  Rep.  647,  93  N.  W.  tion  in  this  case,  however,  which  it  is 


§  618  Ch.  26.     EMINENT  DOMAIN.  (3d  ed.)  675 

of  the  courts.  The  Nebraska  court  laid  stress  upon  the  fact  that, 
the  condemnor  had,  under  claim  as  appropriator,  secured  the 
approval  of  the  State  Board  of  Irrigation;  the  court  holding 
(contrary  to  the  usual  authority  elsewhere.)10  that  the  determina- 
tion of  the  State  board  is  conclusive  upon  the  courts  and  con- 
sidered that  the  permit  of  the  State  board  passed  a  title  which 
would  support  an  action  to  quiet  title  against  the  real  owner. 
This  gives  to  the  board  the  power  to  license  (so  as  to  be  binding 
on  the  court)  what  would  otherwise  be  a  trespass ;  to  create  rights 
in  one,  by  taking  them  from  another;  to  violate  the  constitution 
guaranteeing  private  property  rights. 

The  cases  arose  after  the  court  had  declared  riparian  rights 
to  exist  in  Nebraska  (as  in  California),  which  was  an  unpopular 
position.  The  property  taken  in  these  cases  was  the  riparian  right, 
and  the  court  took  this  way  of  largely  nullifying  its  former  deci- 
sions. One  need  not  find  fault  with  decisions  making  an  open 
rejection  of  riparian  rights,  but  only  with  decisions  which  go 
around  by  the  back  way  to  nullify  rights  which  previous  cases,  at 
the  front  door,  said  they  were  upholding. 

(3d  ed.) 

§  618.  Same. — Another  question  is,  What  will  be  the  applica- 
tion of  this  rule  in  connection  with  Clark  v.  Nash  ? n  In  Clark 
v.  Nash  the  rule  was  established  that,  under  certain  circum- 
stances, water-rights  and  other  property  can  be  condemned  for 
private  advantage  without  devoting  it  to  public  supply.  Can 
one,  then,  in  a  case  of  diverting  water  from  its  owner's  to  one's 
own  private  field  for  irrigation,  defend  an  injunction  on  the 
ground  that  condemnation  would  lie  and  multiplicity  of  actions 
is  to  be  avoided?  If  so,  injunctions  in  water  suits  would  cease, 
for  under  Clark  v.  Nash  private  irrigation  may  be  a  use  for 
which  condemnation  will  lie,  and  defendants  in  ordinary  injunc- 
tion suits  would  need  only  to  pay  damages.  Or  will  it  be  said 
that  the  irrigation  by  both  private  parties  is  equally  a  public 
use,  so  that  the  taker  must  show  a  more  necessary  use?  If  so, 

proposed  to   further  consider,   relates  by  which   his   right  is   protected,   his 

more  to  the  remedial  rights  of  the  par-  right  is,  in  effect,  denied  in  substance, 

ties  to  the  controversy,  than  to  a  de-  The  court  takes  away  the  private  right 

termination  of  the  substantive  rights  when    it    takes    away    the    means    by 

or  interests  in  property  of  which  they  which  it  lives. 

may  be  possessed."     McCook  Irr.  Co.  10  Infra,  sees.  1192  et  ?eq.,  1194. 

v.  Crews,  70  Neb.  115,  102  N.  W.  249.  U  Supra,  sec.  607  et  seq. 

Yet  denying  the  owner  the  procedure 


676  (3d  ed.)     Pt.  III.     THE  LAW  OF  PRIOR  APPROPRIATION.         §  618 

will  a  greater  private  necessity  for  the  other  man's  water-right 
make  it  a  more  necessary  use  and  prevent  injunction?  In  other 
words,  if  you  need  another  farmer's  water-right  more  on  your 
own  farm  than  he  does  on  his,  can  you  simply  take  it  and  make 
him  accept  damages  when  he  sues  for  an  injunction? 

This  rule  of  procedure  making  condemnation  proceedings  un- 
necessary in  certain  circumstances,  and  the  rule  of  Clark  v.  Nash 
holding  that  condemnation  may  (under  certain  circumstances)  lie 
for  private  enterprise  and  not  necessarily  for  general  supply, 
when  taken  together,  so  facilitate  the  taking  of  private  property 
from  its  owner  as  to  be  far-reaching  in  their  practical  results; 
opening  the  way  for  a  system  of  condemnation  water-rights  easily 
obtained;  and  in  time  may  constitute  a  system  of  condemnative 
water-rights  in  a  class  by  itself. 

§§  619-623.     (Blank  numbers.), 


Ch.  27.    PROCEDURE.  (3ded.)  677 


CHAPTER  27. 
PROCEDURE. 

§  624.     Introductory. 

A.     PARTIES. 
§  625.     Cases  are  governed  by  the  relative  rights  of  the  parties  before  the 

court. 

§  626.     Rights  of  strangers  to  a  suit  cannot  be  bound. 
§  627.     Nor  can  rights  of  strangers  affect  the  result  between  the  parties 

litigant. 

§  628.     Recurrence  of  the  principle  in  the  law  of  waters. 
§  629.     Joinder  of  parties. 
§  630.     Joinder  of  issue  between  the  parties. 
§  631.     Parties  (concluded). 

B.     PLEADING  AND  PRACTICE. 

§  632.  Jurisdiction. 

§  633.  Joinder  of  causes  of  action. 

§  634.  Pleading  (continued) — Allegations  in  complaint. 

§  635.  Alleging  local  customs. 

§  636.  Evidence. 

§  637.  Damages. 

§  638.  Measure  of  damages. 

§  639.  Decree. 

§  640.  Miscellaneous  matters  of  practice. 

C.    INJUNCTION. 

§  641.  Irreparable  injury. 

§  642.  Same — Injuria  sme  damno. 

§  643.  Prospective. 

§  644.  Laches. 

§  645.  Making  out  right  at  law. 

§  646.  Mandatory  injunctions.     (Abatement  of  nuisance  by  suit.) 

§  647.  Defenses  to  injunction. 

§  648.  Balance  of  inconvenience  between  the  parties. 

§  649.  Same — Hardship  on  the  public. 

§  650.  Same — Conflict  between  mining  and  agriculture. 

§  651.  Same — Against  public  service  companies. 

§  652.  Preliminary  injunctions. 

§  653.  Injunction — (Conclusion). 

D.     OTHER  EQUITABLE   REMEDIES. 
§  654.     Bills  to  quiet  title,  etc. 
§  655.     Specific  performance  and  allied  matters. 


678   (3ded.)     Pt.  III.     THE  LAW  OF  PRIOR  APPROPRIATION.         §624 

E.     MISCELLANEOUS   REMEDIES. 
§  656.     Actions  at  law. 

§  657.     Abatement  of  nuisance  by  act  of  party — Use  of  force. 
§  658.     Crimes. 
§§  659-665.     (Blank  numbers.) 

(3d  ed.) 

§  624.  The  preceding  chapters  have  been  devoted  to  the  sub- 
stantive law,  defining  and  bounding  an  appropriator's  rights. 
In  the  protection  of  these  rights,  there  remain  over  various  mat- 
ters concerning  procedure.  Some  arise  out  of  the  new.  statutes 
which  provide  special  procedures.  These  we  leave  to  a  special 
part  of  this  book  below.1  Here  we  will  deal  with  the  procedure 
aside  from  special  irrigation  legislation,  and  under  the  general 
law  of  the  land.2 

Owing  to  the  fact  that  water  suits  deal  with  rights  of  numer- 
ous people  (and,  as  settlement  advances,  of  whole  communities) 
in  a  common  and  to  a  large  extent  indivisible  supply,  procedure 
is  frequently  complicated  because  of  the  large  number  of  rights 
involved  at  the  same  time;  further,  because  of  the  fluid  nature 
of  the  subject  matter  of  the  litigation,  "which  does  not  stay  quiet 
in  a  certain  place,  but  is  always  running  from  one  place  to  an- 
other"; because,  moreover,  of  its  fluctuating  volume  or  condition 
with  the  varying  seasons,  localities  and  surroundings.3 

By  way  of  recapitulating  some  general  introductory  ideas  in 
respect  to  the  test  of  wrongful  interference  with  a  right  of  appro- 
priation, there  may  be  noted  the  departure  from  the  common  law 
between  riparian  proprietors.  That  system  is  founded  upon  the 
equality  of  right  of  all  riparian  proprietors,  each  riparian  owner 
having  the  right  to  a  reasonable  use  of  the  stream,  although  by 

1  Infra,  Part  VI.  supply,   necessarily   give   rise   to   new 

2  Such  matters  as  arise  exclusively  questions  of  practice,  not  covered  by 
under  the  system  of  riparian  rights  as  the    statute   nor   aided    by   precedent, 
distinguished   from  appropriation  are  The  courts,  then,  are  confronted  with 
not  generally  considered  in  this  chap-  the  dilemma  either  of  exercising  their 
ter.     See  infra,  sec.   880  et   seq.     As  discretion  in  such  matters  or  of  mak- 
a    rule,    however,   the   matters    herein  ing  an  exception  to   that   well-known 
considered  apply  throughout  the  water  maxim,  which  is  the  foundation  of  all 
law.  equitable     jurisdiction,    that     'equity 

3  It    was    said     in    a    recent    case:  will  not  suffer  a  right  to  be  without 
"Water  suits  are,  in  a  sense,  sui  gen-  a     remedy.' "     Mr.    Justice     King    in 
eris;  for  the  complications  and  many  Hough  v.  Porter,  51  Or.  .318,  95  Pac. 
intricacies   developed  by  litigation  of  732,  98  Pac.  1083,  102  Pac.  728. 

this  character,  of  late  years,  when  all  See,  for  example,  Jackson  v.  Indian 

available  lands  are  rapidly  becoming  etc.  Co.,  13  Idaho,  513,  110  Pac.  251; 

settled,  resulting  in  most  instances  in  Windsor  Res.  Co.  v.  Lake  Supply  Co., 

the  demand  for  water  exceeding   the  44  Colo.  214,  98  Pac.  729. 


§625  Ch.  27.     PROCEDURE.  (3ded.)  679 

exercising  it  the  use  of  the  stream  by  another  riparian  proprietor 
was  made  less  favorable.  Neither  riparian  proprietor  can  claim 
an  exclusive  right;  their  rights  are  correlative.  But  under  the 
law  of  appropriation  the  prior  appropriator  gets  an  independent 
and  exclusive  right,  any  material  interference  with  which  is 
wrongful,  however  reasonable  the  interference  might  have  been 
between  riparian  owners.  The  rules  of  the  common  law  based  upon 
correlative  rights  have  no  application.4  The  question  under  the 
law  of  appropriation  generally  is  whether  the  flow  is,  in  any  sub- 
stantial degree  at  all,  made  less  fit  for  the  prior  appropriator 
(his  right  still  being  exclusive  of  and  paramount  in  every  way 
to  any  subsequent  claimant),  and  if  it  is  so  interfered  with,  the 
interference  is  wrongful.  "In  all  controversies,  therefore,  be- 
tween him  and  parties  subsequently  claiming  the  water,  the 
question  for  determination  is  necessarily  whether  his  use  and 
enjoyment  of  the  water  to  the  extent  of  his  original  appropriation 
have  been  impaired  by  the  acts  of  the  defendant."5 


A.     PARTIES. 

(3d  ed.) 

§  625.  Cases  are  Governed  by  the  Relative  Rights  of  the  Par- 
ties Before  the  Court. — It  is  a  general  principle  of  law  that  the 
court  can  determine  the  rights  only  of  the  parties  to  the  suit,  and 
only  as  between  themselves.  They  may  both  be  wrongdoers  as 
against  a  third  person,  yet  that  third  person  may  never  set  up  his 
right  against  either  of  them.  It  is  the  office  of  the  court  to  adjudge 
only  the  relative  rights  in  actual  controversy  of  the  plaintiffs  against 
the  defendants  and  vice  versa.  Hence  it  is  that  different  decrees 
often  award  to  different  persons  the  whole  of  a  stream,  such  awards 
being  in  different  suits  between  different  parties,  though  as  against 
other  appropriators  who  have  not  taken  part  in  the  litigation  they 
may  have  no  right  at  all.  In  order  to  determine  what  right  one 
absolutely  has  in  the  stream  as  against  all  claimants,  all  claimants 
must  be  brought  into  court ;  otherwise  the  court  can  adjudge  only 

4  Except  so  far  as  considered  supra,  For  the  distinction  between  the  ex- 
sec.  310  et  seq.  elusive  right  of  the  law  of  appropria- 

5  Per  Mr.  Justice  Stephen  Field  in  tion  and  the  correlative  rights  of  the 
Atchison   v.   Peterson,   87   U.   S.   507,  common   law,   compare   Hill   v.   King, 
22  L.  Ed.  414,  1  Morr.  Min.  Rep.  383.  8  Cal.  336,  4  Morr.  Min.  Rep.  533,  and 
Italics     ours.     As     to    Judge    Field's  Bear  R.  Co.  v.  N.  Y.  Co.,  8  Cal.  327, 
views  upon  this  matter,  see,  however,  68  Am.  Dec.  325,  4  Morr.  Min.  Rep. 
supra,  sec.  312.  526. 


680  (3ded.)     Pt.  III.     THE  LAW  OF  PRIOB  APPROPRIATION.         §626 

the  relative  rights  of  those  before  it.  Possession  is  a  sufficient 
right  to  the  whole  stream  against  a  wrongdoer  as  to  the  possessor. 

One  of  the  grounds  for  indictment  of  the  system  of  appropria- 
tion has  been  this  feature  that  one  decree  will  absolutely  enjoin 
John  Smith  from  diverting  any  water  of  the  whole  stream  against 
Tom  Jones,  and  another,  in  a  different  suit  to  which  John  Smith 
is  not  a  party  (and  who,  consequently,  is  in  no  way  bound 
thereby),  will  in  the  same  way  enjoin  Frank  Doe  from  divert- 
ing any  water  of  the  whole  stream  against  Richard  Roe.  This  is 
unavoidable,  for  it  would  be  against  justice,  and  constitutional 
principles  of  due  process  of  law,  to  bind  by  a  decree  the  rights 
of  a  man  who  was  not  before  the  court,  or  to  apply  them  for  the 
benefit  of  a  litigant  to  whom  they  do  not  belong.  It  is  too  obvious 
to  require  elaboration  that  the  parties  t&  a  lawsuit  must  fight  it  out 
between  themselves,  and  at  the  same  time  its  results  affect  them 
alone.  The  law  guarantees  to  every  man  his  day  in  court  and  a 
right  to  a  hearing  before  his  right  can  be  adjudged. 

It  is  in  recognition  of  this  fundamental  principle  that  the 
water  codes  have  provided  a  special  procedure  to  determine 
rights  by  bringing  all  appropriators  upon  a  stream  into  court  in 
a  single  suit,  in  which  all  litigate,  and  the  decree  may  hence  be 
absolute  in  its  determination.  This  special  procedure  is  else- 
where considered  at  length.6 

(3d  ed.) 

§  626.    Rights  of  Strangers  to  a  Suit  cannot  be  Bound. — A 

judgment  or  decree  can  bind  only  the  parties  before  the  court,  and 
any  that  tries  to  do  more  is  void.  The  supreme  court  of  California 
says:  "It  may,  perhaps,  be  unnecessary  to  add  that  the  foregoing 
discussion  has  reference  simply  to  the  rights  of  the  parties  inter  se. 
The  right  of  third  parties  to  take  a  part  of  the  water  of  the  lake,  or 
to  complain  of  a  diversion  by  any  of  the  parties  to  this  action,  is 
not  here  involved,  and  cannot  be  affected  by  anything  here  de- 
cided."7 The  supreme  court  of  Washington  says:  "In  the 
argument  submitted  in  support  of  the  action  of  the  trial  court 
it  seems  to  be  assumed  that  these  decrees  fix  the  rights  of  the 
parties  to  the  waters  of  Moses  Lake  and  Crab  Creek,  not  only  as 

6  Infra,  sees.  1206,  1222  et  seq.  court  said  that  the  right  "cannot  be 

7  Duckworth  v.  Watsonville  Co.,  158  vicariously    contested    by    another   on 
Cal.   206,   110  Pac.  927.     In  Same  v.  behalf   of    the   owner   of    the   better 
Same,  150  Cal.  520,  89  Pac.  338,  the  right." 


§626  Ch.  27.     PROCEDURE.  (3ded.)  681 

between  themselves,  but  as  to  other  and  third  parties  claiming 
interests  adverse  to  such  parties.  But  a  moment's  reflection  must 
convince  anyone  that  this  view  is  erroneous.  Although  general 
in  form,  and  broad  enough  in  language  to  include  the  whole 
world,  they  can  have  no  such  effect.  They  are  binding  on  the 
parties  to  the  action  and  their  privies,  but  upon  no  one  else.  As 
to  strangers  claiming  rights  in  the  waters  of  the  lake  the -decrees 
in  no  manner  affect  them.  The  decrees  are  not  even  evidence 
of  adverse  rights.  Strangers  may  proceed  as  if  the  decrees  had 
never  been  entered."8 

An  action  to  enjoin  a  water  commissioner  from  diverting  water 
from  a  stream,  to  be  effective  for  the  end  desired,  must,  it  is  held, 
join  as  defendants  the  persons  for  whose  benefit  it  is  diverted,  since 
a  decree  against  a  water  commissioner,  alone,  does  not  affect  owners 
who  were  not  parties  to  the  suit.9  A  decree  adjudicating  rights 
between  two  parties  does  not  govern  as  to  a  right  later  purchased 
by  one  of  them  from  a  stranger  to  the  suit.10  A  decree  based  upon 
the  rights  of  owners  in  one  water  district  cannot  be  binding  upon 
them  when  rendered  in  another  district  in  a  suit  to  which  they 
were  not  parties.11 

A  statute  in  Montana 12  seems  to  say  that  appropriators  are 
bound  by  decree  in  suits  decided  prior  to  their  appropriation, 
though  not  parties  thereto.  Except  possibly  on  the  theory  of 
the  decree  acting  as  additional  notice,  operating  as  a  notice  of 
appropriation,  this  violates  a  rule  "as  old  as  the  law  that  no 
man  shall  be  condemned  in  his  rights  of  property,  as  well  as 
in  his  rights  of  person,  without  his  day  in  court,"13  and  its  con- 
stitutionality may  perhaps  be  questionable.  The  Montana  court 
has  held  that  a  decree  cannot  bind  persons  who  were  not  parties 
(nor  privy  to  any  parties)  to  the  action,  and  who  had  no  connection 
with  the  litigation  or  with  the  parties  thereto.14 

8  State  ex  rel.  McConihe  v.  Stciner  10  Josslyn  v.  Daly,  15  Idaho,  137, 
(Wash.),  109  Pac.  57.  96  Pac.  568. 

9  Squire  v.   Livezey,   46   Colo.   302,  n  McLean  v.  Farmers'  Co.,  44  Colo. 
85    Pac.    181;     Boulder     etc.    Co.    v.  184,  98  Pac.  16.     But  see  infra,  seca. 
Hoover  (Colo.),  110  Pae.  75;  McLean  1232,  1233. 

v.  Farmers'  etc.  Co.,  44  Colo.  184,  98"  12  Laws  1907,  p.  489,  sec.  12. 

Pac.  16,  citing  Farmers'  Highline  C.  13  Terrell  v.  Allison,  21  Wall.  293, 

&  R.  Co.  v.  White,   32  Colo.   114,  75  22  L.  Ed.  634. 

Pac.  415 ;  Brown  v.  Farmers'  Highline  u  State    ex    rel.    Pew    v.    District 

C.  &  B.  Co.,  26  Colo.  66,  56  Pac.  183.  Court,  34  Mont.  233,  85  Pac.  525. 


682   (3d  ed.)     Pt.  III.     THE  LAW  OF  PEIOR  APPEOPEIATION.         §  627 
(3d  ed.) 

§  627.  Nor  can  Rights  of  Strangers  Affect  the  Result  Between 
the  Parties  Litigant. — Not  being  bound  nor  before  the  court  at  all, 
the  rights  of  strangers  correspondingly  cannot  affect  the  suit;  it 
must  be  determined  upon  the  relative  rights  alone  of  those  before 
the  court.  It  cannot  avail  one  party  to  say  that  some  stranger 
to  the  suit  has  a  better  right  than  his  opponent.  The  supreme 
court  of  the  United  States  has  said:  "Neither  do  we  think 
that  the  trial  court  was  called  upon,  at  the  instance  of  the 
defendants,  entire  strangers  in  every  aspect  to  other  appro- 
priators,  to  inquire  into  and  pass  upon  the  question  whether 
appropriators  of  water  below  the  mouth  of  the  proposed  canal 
of  appellee  would  be  injured  by  the  construction  of  the  canal. 
The  rights  of  such  persons  will  not,  of  course,  be  injuriously 
affected  by  the  decree  in  this  cause,  and  non  constat  but  that  they 
may  yet  intervene  for  their  own  protection,  if  they  deem  that  the 
construction  of  the  canal  will  be  an  invasion  of  their  rights,  or 
that  they  may  be  willing  to  forego  objection  to  the  construction 
of  the  canal."15 

The  question  whether  the  appropriation  of  water  interferes  with 
the  rights  of  other  appropriators  cannot  be  raised  by  parties  who  are 
strangers  to  such  other  appropriators  not  parties  to  the  action.16 
Rights  of  strangers  cannot  be  set  up  as  a  defense  to  condemnation 
proceedings.17  Nor,  in  an  action  in  Colorado  to  change  the  point  of 
diversion,  is  it  any  defense  that  the  change  might  injure  inter- 
mediate users  on  the  stream  who  are  not  parties  to  the  action.18 
The  rights  of  third  parties  cannot  be  set  up  unless  they  are 
brought  into  court.  If  the  defense  to  an  action  for  diversion  is 
that  plaintiff  has  no  title  to  the  water-right  and  that  there  are 

15  Gutierres     v.     Albuquerque     etc.  Boulder   etc.    Co.   v.   Hoover    (Colo.), 
Co.,  188  U.  S.  545,  23  Sup.  Ct.  Eep.  110  Pac.  75;  Hackett  v.  Larimer  etc. 
338,  47  L.  Ed.  588.  Co.  (Colo.),  109  Pac.  965;  Humphreys 

16  Gutierres  v.  Albuquerque  etc.  Co.",  T.    Co.   v.   Frank,   46    Colo.    524,   105 
188  U.  S.  545,  23  Sup.  Ct.  Eep.  338,  Pac.    1093;    Carnes   v.   Dalton    (Or.), 
47  L.   Ed.   588;    Senior  v.   Anderson,  HO  Pac.  170. 

138    Cal.    716,    72    Pac.    349;    Utt   v.  17  Schneider  v.   Schneider,  36  Colo. 

Frey,    106    Cal.    396,    39    Pac.    807;  518,  86  Pac.  347;  Denver  etc.  Co.  v. 

Clark  v.  Ashley,  34  Colo.  285,  82  Pac.  Denver  etc.  Co.,  30  Colo.  204,  69  Pac. 

588;  Burkart  v.  Meiberg,  37  Colo.  387,  568,    60     L.    E.    A.    383;     Walker    v. 

119  Am.  St.  Eep.  279,  86  Pac.  99,  6  Shasta  etc.  Co.,  160  Fed.  859,  87  C.  C. 

L.  R.  A.,  N.  S.,  1104;  Silva  v.  Hawk-  A.   660.     See  supra,  sec.  615. 
ins    (Cal.),   9   Pac.    72;    Buckers   etc.  18  Crippen  v.  Glasgow,  38  Colo.  104, 

Co.  v.  Farmers'  etc.  Co.,  31  Colo.  62,  87  Pac.  1073 ;  Lower  Latham  etc.  Co. 

72  Pac.  49;   Seven  Lakes  Co.  v.  New  v.  Bijou  etc.  Co.,  41  Colo.  212,  93  Pac. 

Loveland   etc.   Co.,    40    Colo.    382,    93  483 ;  Diez  v.  Hartbauer,  46  Colo.  599, 

Pac.   485,   17   L.   R.   A.,   N.   S.,   329;  105  Pac.  868. 


5627  Ch.  27.     PROCEDURE.  (3ded.)683 

appropriators  prior  to  him,  such  appropriators  should  be  brought 
into  court  by  a  cross-bill.19  The  contention  that  water  and  ditch 
rights  sought  on  eminent  domain  may  conflict  with  the  rights  of 
other  appropriators  who  are  not  parties  to  the  action  cannot  be 
raised.20  That  prior  appropriators  below  stream  will  have  a  right 
to  complain  gives  an  appropriator  above  no  right  of  action  against 
a  diversion  by  a  defendant  as  between  the  two.  If  plaintiff  fears 
that  he  will  be  blamed  by  the  lower  appropriators  for  defendant's 
diversion,  he  should  join  them  as  defendants.21  In  a  suit  by  the 
United  States  to  enjoin  a  canal  upon  public  land,  rights  of  settlers 
over  whose  land  the  canal  might  also  pass  are  immaterial.22 
That  an,  appropriation  interferes  with  the  navigability  of  a 
navigable  stream  cannot  be  set  up  by  anyone  but  the  State  or 
United  States,  or  someone  interfered  with  in  navigating.1 
That  one  claiming  an  appropriation  on  public  land  is  an  alien 
can  only  be  raised  by  the  United  States,  if  at  all.2  Whether  acts 
of  a  corporation  in  distributing  water  are  ultra  vires  cannot  be 
raised  by  a  stranger  diverting  water  above  on  the  same  stream.3 
A  right  to  use  water  through  a  ditch  over  land  of  another  can  be 
objected  to  only  by  the  owner  of  the  land.4  That  a  ditch  is 
bringing  water  to  plaintiff's  land  by  trespassing  on  the  land  of  a 
third  person  cannot  avail  a  party  who  is  a  stranger  to  such  third 
person.5  "It  may  be  that  the  holder  of  the  true  title  may  not 
wish  to  assert  his  right,  and  if  he  should  not  wish  to  assert  his 
title,  the  defendant  has  no  right  to  assert  it  for  him."6 

That  there  are  other  wrongdoers  is  no  defense  to  an  action  for 
damages   (although    receivable    in    mitigation)7  or  injunction;8 

19  Humphreys  v.  McCall,  9  Cal.  59,        (1909),  155  Cal.  82,  13^  Am.  St.  Rep. 
70  Am.  Dec.  621.  59,  99  Pac.  520,  22  L.  E.  A.,  N.  S., 

20  Schneider  v.   Schneider,  36  Colo.       401,  17  Ann.  Cas.  823. 

518,  86  Pac.  347.  c  Humphreys  v.  McCall,  9  Cal.  63, 

21  Larimer  etc.  Co.  v.  Water  Supply       76  Am.  Dec.  621. 

Co.,  7  Colo.  App.  225,  42  Pac.  1020.  ?  Gould  v.  Stafford,  77  Cal.  66,  18 

22  United    States   v.   Lee    (N.   M.),       Pac.  879;  Kevil  v.  City  of  Princeton 
110  Pac.  607.  (Ky.  Civ.  App.),  118  S.  W.  363;  Beck 

1  Supra,  sec.  339.  v.  Bono  (Wash.),  110  Pac.  13. 

2  Santa   Paula   W.   W.   v.   Peralta,  »  Gould  v.  Stafford,  77  Jal.  66,  18 
113  Cal.  38,  45  Pac.  168.                             Pac.   879;   Lakeside  D.  Co.  v..  Crane, 

*  Semble,  Arroyo  D.  Co.  v.  Baldwin  80  Cal.  181,  22  Pac.  76;  Los  Angeles 

(1909),  155  Cal.  280,  100  Pac.  874.  v.  Hunter,  156  Cal.  603,  105  Pac.  755; 

4  Hough  v.  Porter  (1909),  51  Or.  Humphreys  T.  Co.  v.  Prank,  46  Colo. 

318  95  Pac.  732,  98  Pac.  1083,  102  524,  105  Pac.  1093;  Carnes  v.  Dalton 

Pap.  728.  (Or.),  110  Pac.  170  (citing  this  book, 

r>  Ellis  v.  Tone,  58  Cal.  289 ;  Pen-  2d  ed.,  sec.  196)  ;  Beck  v.  Bono 

dola  v.  Ramon,  138  Cal.  517.  71  Pac.  (Wash.).  110  Pac.  13;  Weeks  etc. 

624;  Turner  v.  James  Canal  Co.  Co.  v.  Glenside  W.  Mills,  64  Misc. 


684   (3d  ed.)     Pt.  III.     THE  LAW  OF  PRIOR  APPROPRIATION.         §  628 

although  it  has  been  held  that  if  there  are  sufficient  other  wrong- 
doers taking  the  whole  even  without  defendant,  such  total  diver- 
sion by  others  is  a  defense.9  This  should  seem  to  be  the  rule  only 
where  it  amounts  to  a  disproval  that  defendant  contributed  at 
all  to  the  injury.  Again,  persons  against  whom  an  action  is 
brought  to  cancel  their  rights  in  an  irrigation  company  cannot 
complain  that  the  action  is  not  also  maintained  against  others 
having  no  better  rights.10 

(3d  ed.) 

§  628.  Recurrence  of  the  Principle  in  the  Law  of  Waters. — 
The  principle  and  the  idea  upon  which  it  rests  are  far-reaching 
and  underlie  a  very  large  part  of  the  law;  colloquially  expressed, 
that  possession  is  nine  points  of  the  law.  In  fact,  so  often  does 
it  come  up  that  one  is  sometimes  tempted  to  lose  perspective  and 
to  think  that  the  whole  law  of  real  property  is  a  possessory  law — 
that  possession  is  the  whole  law  of  real  property  instead  of  only 
nine-tenths  of  it — and  that  actual  title  against  the  world  is  but  a 
fringe  of  the  fabric,  so  often  must  cases  be  decided  without 
reference  thereto,  the  real  title  being  not  represented  in  court. 
The  following  are  some  of  the  instances  where  this  principle  has 
been  important  in  the  preceding  chapters. 

(a)  The  early  law  of  possessory  rights  on  the  public  domain, 
and  therefore  of  the  law  of  appropriation  of  water  itself,  was 
rested  upon  it.  The  real  title  to  the  public  lands,  mines  and 
waters  was  regarded  as  being  in  the  United  States  as  landowner 
of  the  public  lands,  so  that  the  pioneers  were  declared  by  some 
to  be,  in  true  law,  mere  trespassers  subject  to  ouster.  But  Con- 
gress remaining  silent  and  the  Federal  title  not  being  represented 
in  court,  the  courts  decided  eases  between  private  persons  with- 
out reference  to  such  outstanding  Federal  title.  As  between  the 
pioneers  themselves,  possession  was  nine  points  of  the  law,  and 
priority  governed  though  neither  had  any  positive  right  of  title. 
The  results  of  this  we  have  shown  throughout,  such  as,  for  ex- 
ample, the  survival  of  the  old  rule  as  to  parol  sales.  But  in  the 
act  of  1866  the  theory  that  the  waters  were  open  to  free  acquisi- 
tion by  the  people  displaced  that ;  the  appropriators  on  public  land 

Rep.    205,    118    N.    Y.    Supp.    1027;  »  West    Point    etc.    Co.    v.    Moroni 

United  States  v.  Conrad  Inv.  Co.,  156       etc.  Co.,  21  Utah,  229,  61  Pac.  16. 
Fed.  123.  ™  Blakeley  v.  Ft.  Lyon  Co.,  31  Colo. 

224,  73  Pac.  249. 


§628  Ch.27.     PEOCEDUEE.  (3ded.)   685 

have  since  been  regarded  in  California  as  grantees  of  the  United 
States  enjoying  a  full  title;  an  appropriation  no  longer  depends 
upon  the  present  principle,  and  instead  has  to-day  the  dignity  of  a 
fee — a  freehold — an  absolute  right  in  real  property  against  the 
world.  This  is  considered  in  the  opening  chapters  of  Part  II  of 
this  book. 

(b)  The  question  whether  the  law  of  appropriation  applies  to 
ditches  on  private  land  or,  under  the  California  doctrine,  to  waters 
thereon.     Against  the  landowner  it   does   not;   but  against  stran- 
gers  to   the   landowner,  this    principle   of   possession   being   nine 
points  of  the  law — a  possessory  as  distinguished  from  a  free- 
hold right — governs;  that  is,  no  one  but  the  injured  riparian 
owner  will  be  heard  to  set  up  the  existence  of  private  land  or 
riparian  rights  on  the  stream.11 

(c)  As  to  the  use  of  the  ditches   or  other  works  of  a  stranger 
to  the  suit.12 

These  are  matters  elsewhere  considered,  and  there  are  many 
other  connections  in  which  the  principle  arises.  In  the  note  are 
given  some  citations  enforcing  the  principle  in  one  form  or  an- 
other.13 

At  the  same  time,  some  exceptions  may  be  noted.  The  main 
one  is  that  where  the  parties  are  engaged  in  a  crime  upon  the 

11  Supra,   sec.   246.     In  this   quasi  Co.,  152  Cal.  87,  92  Pac.  77;  TuTher 
sense,  one  California  Justice  declares  v.  James  Canal  Co.,  155  Cal.  82,  132 
that   the   law   of   prior   appropriation  Am.  St.  Eep.  59,  99  Pac.  520,  22  L. 
applies  in  California  to  ditch-building  E.  A.,  N.  S.,  401,  17  Ann.  Cas.  823; 
and    to    waters    upon    private    lands.  Los  Angeles  v.  Hunter,  156  Cal.  603, 
See  supra,  sec.  246,  and  infra,  sees.  1Q5    Pac.    755.     For    an    illustration 
828    1106  and  1158.  where  the  decision  is  possibly  errone- 

12  Supra    sec.  390.  ous    ^or   having    overlooked    this,    see 

13  The  following  list  is  not  intended  Cave  v-  T7ler>  «*P«*»  secs-  246>  247- 

to  be  complete,  and   other  cases  are  Colorado. — Larimer      etc.      Co.      v. 

cited  in  the  previous  sections :  Water  Supply  Co.,  7  Colo.  App.  225, 

California.— Humphreys   v.   McCall,  42    Pac.    1020;     Buckers    etc.    Co.    v. 

9  Cal.  59,  70  Am.  Dec.  621;   Ellis  v.  Farmers'  etc.  Co.,  31  Colo.  62,  72  Pac. 

Tone,  58  Cal.  289;  Emerson  v.  Bergin,  49;  Clark  v.  Ashley,  34  Colo.  285,  82 

71   Cal.   335,   12   Pac.   242;    Gould  v.  Pac.    588;    Burkhart    v.    Meiberg,   37 

Stafford,    77    Cal.    66,    18    Pac.    879;  Colo.   187,  119  Am.  St.  Eep.  279,  86 

Lakeside  D.  Co.  v.  Crane,  80  Cal.  181,  Pac.   99,   6    L.   E.    A.,   N.   S.,    1104; 

22  Pac.  76;  Utt  v.  Frey,  106  Cal.  396,  Schneider  v.  Schneider,  36  Colo.  518, 

39  Pac.  807;  Senior  v.  Anderson,  138  86  Pac.  347;   Crippen  v.  Glasgow,  38 

Cal.  716,  72  Pac.  349;  Craig  v.  Craf-  Colo.    104,    87     Pac.    1073;     Clark   v. 

ton  Water  Co.,  141  Cal.  178,  74  Pac.  Ashley,   34   Colo.   285,    82    Pac.   588; 

762 ;   Silva  v.  Hawkins,  152  Cal.  138,  Denver  Co.  v.  Denver  Co.,  30  Colo.  204, 

92  Pac.  72 ;  Duckworth  v.  Watsonville  69  Pac.  568,  60  L.  E.  A.  383 ;   Hack- 

etc.   Co.,   150  Cal.   520,   89  Pac.  338;  ett  v.  Larimer   etc.   Co.    (Colo.),    109 

Same  v.  Same,  158  Cal.  206,  110  Pac.  Pac.  965 ;  Lower  Latham  Co.  v.  Bijou 

927;  People's  Ditch  Co.  v.  Fresno  etc.  Co.,  41  Colo.  212,  93  Pac.  483;  Bla'ke- 


686   (3d  ed.)     Pt.  III.     THE  LAW  OF  PEIOR  APPROPRIATION.         §  628 


real  owner,  or  acts  involving  moral  turpitude,  the  court  will 
grant  no  relief  to  either,  being  in  pari  delicto;  it  will  consider 
the  outstanding  title  to  that  extent.  A  second  exception  is  that 
in  suits  in  equity  as  distinguished  from  law  (such  as  injunctions 
or  bills  for  specific  performance),  the  discretion  of  the  chancellor 
is  appealed  to,  and  the  better  authority  is  that  he  may  refuse 
relief  if  a  decree  between  the  two  disputants  will  work  great 
hardship  upon  the  public  or  upon  a  third  party  without  suffi- 
cient benefit  to  the  actual  litigant  parties  to  offset  it.14  A  third 
exception  is  that  in  an  action  for  damages,  the  existence  of  other 
wrongdoers  than  the  defendant,  while  no  defense  to  him,  may; 
perhaps,  be  evidence  in  mitigation  of  the  amount  of  damages.15 
Likewise  there  may  be  some  exception  under  statutes  allowing 
one  owner  to  sue  "for  the  benefit  of  all,"  16  or  where  defendant's 
acts  amount  to  a  public  nuisance  and  the  attorney  general  sues 
to  abate  it  upon  behalf  of  the  water-using  public ; 17  in  such  cases 


ley  v.  Fort  Lyon  Co.,  31  Colo.  224, 
73  Pac.  249;  McLean  v.  Farmers'  etc. 
Co.,  44  Colo.  184,  98  Pac.  16;  Seven 
Lakes  Co.  v.  New  Loveland  Co.,  40 
Colo.  382,  93  Pac.  485,  17  L.  R.  A., 
N.  S.,  329 ;  Boulder  etc.  Co.  v.  Hoover 
(Colo.),  110  Pac.  75;  Humphreys  T. 
Co.  v.  Frank,  46  Colo.  524,  105  Pac. 
1093 ;  Diez  v.  Hartbauer,  46  Colo.  599, 
105  Pac.  868. 

Idaho. — Josslyn  v.  Daly,  15  Idaho, 
137.  96  Pac.  568;  Hill  v.  Standard 
Min.  Co.,  12  Idaho,  223,  85  Pac.  907; 
Montpelier  Co.  v.  Montpelier  (Idaho), 
113  Pac.  741. 

Montana. — State  ex  rel.  Pew  v. 
District  Court,  34  Mont.  233,  85  Pac. 
525.  See,  also,  Sloan  v.  Byers,  37 
Mont.  503,  97  Pac.  855. 

New  Mexico. — United  States  v.  Lee 
(N.  M.),  110  Pac.  607. 

Oregon. — Hayden  v.  Long,  8  Or. 
244;  Browning  v.  Lewis,  39  Or.  11, 

64  Pac.  304;  McCall  v.  Porter,  42  Or. 
49,  70  Pac.  820,  71  Pac.  976;  Hough 
v.  Porter,  51  Or.  318,  95  Pac.  732,  98 
Pac.   1083,   102  Pac.   728;   Whited  v. 
Cavin     (Or.     1909),     105    Pac.    396; 
Carnes  v.  Dalton  (Or.),  110  Pac.  170. 
But  see  Brown  v.  Baker,  39  Or.   66, 

65  Pac.  799,  66  Pac.  193    (appearing 
to  have  overlooked  the  point). 

Washington. — State  ex  rel.  McCon- 
ihe  v.  Steiner  (Wash.),  109  Pac.  57; 
Bock  v.  Bono  (Wash.),  110  Pac.  13. 


Federal  courts. — Gutierres  v.  Albu- 
querque etc.  Co.  (N.  M.),  188  U.  S. 
545,  23  Sup.  Ct.  Rep.  338,  47  L.  Ed. 
588;  Walker  v.  Shasta  Power  Co. 
(Cal,),  160  Fed.  856,  87  C.  C.  A.  660; 
Union  Mining  Co.  v.  Dangberg,  81 
Fed.  73;  United  States  v.  Conrad  Inv. 
Co.  (Cal.),  156  Fed.  123. 

Miscellaneous. — Long  v.  Louisville 
etc.  Co.,  128  Ky.  26,  107  S.  W.  203, 
13  L.  R.  A.,  N.  S.,  1063,  16  Ann. 
Cas.  673;  Liliuokalani  v.  Pang  Sam,  5 
Hawaii,  14.  See,  also,  infra,  sec. 
1233. 

14  This  is  a  matter,  however,  upon 
which  there  is  considerable  dispute. 
Infra,  sec.  648  et  seq.,  balance  of 
convenience. 

is  Gould  v.  Stafford,  77  Cal.  67,  18 
Pac.  879,  affirmed  in  Same  v.  Same,  91 
Cal.  146,  27  Pac.  543;  Same  v.  Same, 
101  Cal.  32,  35  Pac.  429.  See,  also, 
Beck  v.  Bono  (Wash.),  110  Pac.  13; 
Kevil  v.  City  of  Princeton  (Ky.  Civ. 
App.),  118  S.  W.  363. 

16  See  Cloyes  v.  Middleburg  Co.,  80 
Vt.   109,   66  Atl.   1039,   11   L.   R.  A., 
N.  S.,  693.     See,  also,  Cal.  Code  Civ. 
Proe.,  sec.  382;  Haese  v.  Heitzig  (Cal., 
March  16,  1911),  114  Pac.  816. 

17  People   ex  rel.   Ricks   etc.   Co.  v, 
Elk  River  Co.,  107  Cal.  228,  48  Am.  St. 
Rep.  121,  40  Pac.  486  (dictum)  •  Peo- 
ple v.  New  York  Carbonic  etc.  Co.,  196 
N.  Y.  421,  90  N.  E.  441. 


§629  Ch.  27.     PROCEDURE.  (3ded.)   687 

perhaps  the  rights  of  all  owners  may  be  considered  without  their 
being  actual  parties  to  the  suit.  Possibly  there  may  be  a  further 
exception  where  the  action  is  strictly  in  rem  (but  it  may  be  that  the 
apparent  exception  there  relates  only  to  the  manner  of  serving 
process). 

(3d  ed.) 

§  629.  Joinder  of  Parties. — In  order  to  settle  the  rights  of  all 
claimants  upon  a  stream  against  each  other,  all  must,  hence, 
be  brought  into  court  in  the  same  suit.18  That  all  the  owners 
of  outstanding  rights  in  the  stream  be  brought  into  court  so 
that  the  rights  of  each  against  all  may  be  determined  by  the 
decree,  is  now  frequently  provided  by  statute,  as  already 
mentioned.188  And  in  the  absence  of  a  statute  so  command- 
ing it  is  within  the  inherent  power  of  the  court  to  order  the 
joinder  in  any  suit  of  all  the  other  claimants.  In  Hough  v. 
Porter,19  Mr.  Justice  King  said :  ' '  The  discretion  of  the  court  below 
in  this  respect  was  exercised  by  requiring  all  persons  owning  lands 
adjoining  or  claiming  an  interest  in  the  waters  of  Silver  Creek,  its 
tributaries,  or  branches,  to  be  brought  in  and  made  parties,  either 
plaintiff  or  defendant,  as  their  interests  appeared,  with  directions 
to  interplead  as  to  each  other,  and  we  think  the  evidence  adduced  at 
the  trial  confirms  the  wisdom  of  the  course  pursued.  It  is  consonant 
with  public  policy,  and  public  interests  require,  that  when  in  the  de- 
termination of  conflicting  claims  to  the  right  to  the  use  of  public 
streams,  for  irrigation,  manufacturing,  or  other  useful  purposes,  it 
appears  that  many  suits  must  eventually  be  brought  to  determine 
the  various  rights  of  persons  whose  property  is  to  be  affected  by 
such  use,  it  should  be  within  the  sound  discretion  of  the  trial 
court  to  require  all,  or  any  of  the  persons  interested,  to  be  made 
parties,  as  was  done  here,  in  order  that  the  rights  of  each  may  be 

adjudicated  and  finally  determined  in  one  proceeding 

In  the  case  at  bar,  however,  the  order  of  the  court,  a  copy  of 

18  Charnock  v.  Higuerra,  111    Cal.  providing    a    summary    procedure    to 

473,  at  481,  52  Am.  St.  Rep.  195,  44  establish  rights  omitted  from  or  aris- 

Pac.   171,  32  L.  R.  A.   190;   Frost  v.  ing  subsequent  to  an  adjudicating  de- 

Alturas    etc.    Co.,    11   Idaho,   294,   81  cree. 

Pac.  996.     See  Creer  v.  Bancroft  etc.  i»  51  Or.  318,  95  Pac.  732,  98  Pac. 

Co.,  13  Idaho,  407,  90  Pac.  228.     See  1083,  102  Pac.  728.     See,  also,  Lytle 

Rickey  etc.  Co.  v.  Wood,  152  Fed.  22,  Creek   Co.   v.    Perdew    (Cal.),   2-  Pac. 

81  C.  C.  A.  218.     (See  infra,  sec.  654.)  731 ;  Williams  v.  Altnow,  51  Or.  275, 

iSa  Infra,  sees.   1206,   1222   et   seq.  95  Pac.  200,  97  Pac.  539. 
See  Idaho  Stats.,  1911,  c.  224,  p.  709, 


G88  (Sded.)     Pt.  III.     THE  LAW  OF  PRIOR  APPROPRIATION.       §629 

which  was  directed  to,  and  served  upon,  each,  required  that  all 
should  appear  within  a  time  there  specified,  and  plead  and  inter- 
plead  with  respect  to  each  other  as  their  several  interests  might 
appear,  which  was  in  effect  the  same,  and  served  the  same  pur- 
pose, as  a  summons,  and  was  sufficient  to  require  the  appearance 
and  interpleas  demanded."  And  finally,  without  statute  or  court 
order,  it  is  allowed  to  the  parties  to  voluntarily  join  all  the  claimants 
they  see  fit,  in  an  action  to  determine  rights.  Several  owners  on 
the  same  stream,  though  not  holding  by  any  common  or  joint  title, 
nor  any  unity  of  design,  may  join  as  plaintiffs  in  an  injunction  suit 
or  a  suit  to  settle  rights,  or  be  joined  as  defendants  M  (although 
they  cannot  join  or  be  joined  in  an  action  for  damages,  whether  also 
claiming  injunction  or  not).21 

But  in  the  absence  of  statute,  such  court  order  for  joinder  of  out- 
standing rights  is  discretionary  only,  and  such  voluntary  joinder  of 
them  is  permissive  only.  In  the  absence  of  statute,  it  is  not  essential 
to  have  them  all  brought  in.  If  they  remain  out  and  the  court  does 
not  think  it  advisable  to  order  them  in,  the  decree  can  settle  nothing 
against  them,  and  can  only  determine  the  relative  rights  of  those 
in  court ;  but  that  it  can  do,  and  as  to  that  the  others  are  not  neces- 
sary parties.  They  are  necessary  to  the  rendition  of  a  decree  good 
"against  the  world,"  but  not  necessary  to  a  decree  only  as  against 
the  specific  party  who  is  in  court.  The  court  may  determine  that 
he  is  a  wrongdoer  against  the  plaintiff  without  determining  what 
plaintiff's  rights  are  against  the  rest  of  the  world.  "This  court 
must  deal  with  the  situation  of  the  parties  as  it  finds  them,  and  pro- 

20  Barnum  v.  Hostetter,  67  Cal.  272,  Mining  Co.  (The  Debris  Case),  8  Saw. 

7    Pac.    689;    Foreman    v.    Boyle,    88  628,  16  Fed.  25;  In  re  North  Bloom- 

Cal.  290,  26  Pac.  94;  Miller  v.  High-  field   etc.   Co.,   27   Fed.   795,   and  au- 

land  etc.  Co.,  87  Cal.  430,  22  Am.  St.  thorities    there   cited;    Union   Mining 

Rep.    254,    25    Pac.    550;    Schultz    v.  Co.   v.   Uangberg,   81    Fed.    73.     See 

Winter,  7  Nev.  130;  Ronnow  v.  Del-  Rickey  etc.  Co.  v.  Wood,  152  Fed.  22, 

mue,  23  Nev.  29,  41  Pac.  1074;  Monte-  81  C.  C.  A.  218;  Ames  etc.  Co.  v.  Big 

cito    etc.   Co.   v.    Santa   Barbara,    144  Indian  etc.  Co.,  146  Fed.  166. 

Cal.    578,    77    Pac.    1113;     Saint    v.  May  join  in  a  suit  to  settle  rights. 

Guerrerio,   17   Colo.   448,   31   Am.   St.  Creer  v.  Bancroft  etc.  Co.,  13  Idaho, 

Rep.    320,   30   Pac.    335;    Desert   etc.  407,   90    Pac.    228.     See,    also,    infra, 

Co.  v.  Mclntyre,  16  Utah,  398,  52  Pac.  sees.  654,  655   (settling  rights). 

628;  United  States  v.  Conrad  Inv.  Co.,  21  Foreman  v.  Boyle,  88   Cal.   290, 

156  Fed.   131;    Norton  v.  Colusa  etc.  26  Pac.  94;  Geurkink  v.  City  of  Peta- 

Co.,  167  Fed.  202 ;  Churchill  v.  Lauer,  luma,    112     Cal.   310,   44     Pac.    570; 

84   Cal.    233,    24   Pac.    107;    Daly   v.  Senior  v.  Anderson,  138  Cal.  723,  72 

Randall,  137  Cal.  674,  70  Pac.  784;  Pac.  349. 

Blaisdell  v.  Stephens,  14  Nev.  17,  33  But  see  Hillman  v.   Newington,  57 

Am.  Rep.  523,  7  Morr.  Min.  Rep.  599 ;  Cal.    56,    contra  concerning     suit   for 

People  v.  Gold  Run  Ditch  &  Min.  Co.,  damages. 
66  Cal.  138,  4  Pae.  1152;  Woodruff  v. 


§  630  Ch.  27.     PROCEDUEE.  (3d  ed.)   689 

ceed  to  determine  the  rights  of  the  persons  within  its  jurisdiction 
who  have  been  properly  brought  before  it,  where  their  rights  can 
be  determined  without  bringing  in  other  parties  who  would  oust  the 
court  of  its  jurisdiction. ' '  ^ 

i 

(3d  ed.) 

§  630.  Joinder  of  Issue  Between  the  Parties. — Upon  like  prin- 
ciples, where  there  are  several  plaintiffs,  their  rights  among 
themselves  cannot  be  determined  if  they  have  not  made  issue 
thereof  between  themselves.  Likewise  of  several  defendants.23 
To  determine  rights  of  several  plaintiffs  or  defendants  inter  se, 
they  must  join  issue  inter  se.2*  Defendant  may  file  a  cross-bill 
for  this  purpose.1 

In  a  recent  case  objection  was  made  against  adjudicating  the  re- 
lative rights  of  defendants  as  to  each  other,  for  the  reason  that  the 
record  did  not  disclose  that  any  issue  was  made,  or  attempted  to 
be  framed,  between  them.  And  the  court  held:  "This  point  we 
deem  well  taken.  Such  would  have  been  within  the  discretionary 
power  of  the  court  had  all  the  parties,  by  its  order,  been  brought 
in,  but  declined  to  appear  or  plead,  and  a  determination  of  their 
relative  interests  found  essential  to  a  determination:  of  the  rights 
of  those  framing  issues.2  But  the  exercise  of  this  discretion  is 
not  essential  to  a  determination  of  the  rights  between  plaintiffs 
and  the  answering  defendants.  The  evidence  adduced  is  also  in- 
adequate for  that  purpose.  The  decree  must  therefore  be  modi- 
fied by  setting  aside  all  that  part  respecting  the  relative  rights 
of  any  of  the  parties.  We  do  not  deem  it  necessary,  however,  to 
remand  this  cause  for  the  purpose  of  trying  out  the  matters  here 
left  unsettled,  and  will  leave  all  unadjudicated  points  for  deter- 

22  Union  Mining   Co.  v.   Dangberg,  24  Bathgate  v.  Irvine,  126  Gal.  135, 
81  Fed.  73.     See,  also,  Sloan  v.  Byers,  77   Am.    St.   Rep.    158,   58   Pac.    442, 
37  Mont.  503,  97  Pac.  855;  Hough  v.  commented   on  in   Montecito   etc.   Co. 
Porter,   51   Or.   318,   95   Pac.   732,  98  v.   Santa   Barbara,    144   Cal.   578,    77 
Pac.   1083,   102   Pac.   728;   Whited  v.  'Pac.    1113;    Strong    v.    Baldwin,    154 
Cavin  (Or.),  105  Pac.  396;  Carnes  v.  Cal.   150,   129   Am.   St.   Rep.   149,   97 
Dalton   (Or.),  110  Pac.  170;   Frost  v.  Pac.  178. 

Idaho  Irr.  Co.   (Idaho),  114  Pac.  38;  i  Rickey  etc.  v.  Wood,  152  Fed.  22, 

and  cases  cited  in  the  foregoing  sec-  gi  c.  C.  A.  218;  Ames  etc.  Co.  v.  Big 

tions,  especially  section  627,  supra.  Indian  etc.  Co..  146  Fed.   166. 

23  Nevada   etc.   Co.   v.   Bennett.   30 

Or.  59,  60  Am.  St.  Rep.  777,  45  Pac.  2  Citing   Hough   v.   Porter,   51    Or. 

472;  Sloan  v.  Byers  (1908),  37  Mont.       318,  439,   441,   95   Pac.  732,   98   Pae. 
503,  97  Pac.  855;  Conley  v!  Dyer,  43       1083,  102  Pac.  728. 
Colo.  22,  95  Pac.  304. 

Water  Rights — 44 


690   (3d  ed.)     Pt.  III.     THE  LAW  OF  PRIOR  APPROPRIATION.         §  631 

mination  in  such  proceeding,  if  any,  as  the  parties  interested  may 
hereafter  see  fit  to  bring."3 

(3d  ed.) 

r§  631.  Parties  (Concluded). — The  owner  of  the  water-right 
has  the  usual  recourse  to  the  courts,  as  he  has  in  the  protection  of 
any  other  property. 

A  mortgagee  has  been  held  to  have  a  right  of  action  against 
a  water  company  for  failure  to  supply  water.4  A  contract  of  pur- 
chase gives  the  intended  purchaser  a  right  to  bring  an  action  to 
change  the  point  of  diversion.5  The  owner  of  arid  agricultural 
lands,  having  a  right  to  use  the  water  of  a  river  for  irrigation 
purposes,  has  such  an  interest  in  the  water  different  from  that  of 
the  general  public  as  entitles  him  to  maintain  an  action  to  restrain 
deposits  of  mineral  debris  in  streams  tributary  to  such  river,, 
which  would  render  the  water  unfit  for  use.6 

Consumers  from  a  corporation  ditch  are  not  necessary  parties 
where  the  corporation,  as  itself  an  appropriator,  sues  a  wrong- 
doer.7 Where  several  water  users  having  rights  as  riparian 
owners  and  by  adverse  use  form  a  corporation  to  distribute  water 
among  themselves,  the  corporation,  whether  it  becomes  the 
owners  of  the  water  titles  or  only  an  agent,  has  sufficient  inter- 
est to  bring  an  action  to  quiet  title  against  an  upper  claimant,, 
and  for  an  injunction.8  A  stockholder  may  enjoin  the  corpora- 
tion from  taking  contracts  beyond  its  capacity.9  With  regard  to 
the  relative  status  as  parties  of  corporations  and  their  consumers 
or  stockholders,  reference  is  made  to  a  later  section.10 

Both  lessor  and  lessee-are  liable  to  a  stranger  for  damage  caused 
by  seepage  from  a  pit  or  pond  that  was  on  the  leased  land  at 
the  time  of  the  lease.11  A  tenant  having  the  right  of  possession 

3  Whited  v.  Gavin   (Or.),  105  Pac.  ?  Montrose  etc.  Co.  v.  Loutsenhizer,, 
396.  23     Colo.     233,    532,    48     Pac.    532; 

4  Equitable  etc.  Co.  v.  Montrose  etc.  Farmers'  etc.  Co.  v.  Agricultural  etc. 
Co.,  20  Colo.  App.  465,  79  Pac.  747.  Co.,   22   Colo.   513,   55   Am.   St.   Rep- 

5  Wadsworth  etc.  Co.  v.  Brown,  39  149,  45  Pac.  444. 

Colo.  57    88  Pac    1060      The  original  g  A           D   CQ   y   Baldwin  (1909)r 
owner  of  land   for  which   water   was  15{.  Cal/280    100   Pae    874< 
appropriated  held  not  liable  to  a  pur- 
chaser of  one  of  the  tracts  into  which  9  McDermott  v.   Anaheim  etc.   Co., 
the  land  was  divided,  for  diversion  of  124  Cal.  112,  56  Pac.  779. 
water    by    third    Persons:     Booth    v.  10  j  f                1245     t 
Trager,  44  Colo.  409,  99  Pac.  60. 

6  Arizona    Copper   Co.    v.    Gillespie  u  Canyon   City  v.   Oxtoby    (1909), 
(Ariz.),  100  Pac.  465.  45   Colo.  214,   100  Pac.   1127. 


§632  Ch.  27.     PROCEDURE.  (3ded.)  691 

may  sue  a  stranger,  the  injunction  obtained  becoming  inoperative 
at  the  end  of  the  lease.12  The  landlord  can  sue  a  stranger  for 
diversion  or  sue  a  canal  company  on  a  water  supply  contract, 
though  tenant  is  in  possession,13  but  is  not  liable  for  a  wrongful 
diversion  by  his  tenant  in  the  absence  of  concurrence  or  consent 
on  the  landlord's  part.14  Questions  concerning  tenants  in  com- 
mon are  considered  in  an  earlier  chapter.15 

Questions  arising  under  recent  special  water  code  legislation 
are  considered  elsewhere.16 


B.     PLEADING  AND  PRACTICE. 

(3d  ed.) 

§  632.  Jurisdiction. — A  diversion  operates  upon  the  whole  of 
a  ditch  and  is  an  injury  to  every  part  of  it.  Consequently  an 
action  can  be  brought  in  Tulare  County,  for  a  diversion  at  the 
head  of  the  ditch  in  Fresno  County,  the  ditch  lying  in  both  coun- 
ties.17 Likewise  of  a  ditch  in  two  States;  a  diversion  in  Montana 
is  actionable  in  Wyoming  into  which  State  the  ditch  runs.18  In 
the  California  case  above  cited,19  plaintiff  and  defendant  diverted 
the  water  of  Kings  River  in  Fresno  County.  Plaintiff's  ditch 
was  about  twenty  miles  in  length,  of  which  about  eighteen  miles 
was  in  Tulare  County,  and  the  damage  was  sustained  by  plain- 
tiff in  the  last-named  county,  in  which  county  the  action  was 
brought.  The  acts  complained  of  being  the  prevention  of  water 
from  flowing  in  plaintiff's  ditch,  which  was  located  in  both  coun- 
ties, while  the  specific  act  of  diversion  complained  of  occurred 
in  Fresno  County,  it  was  held  that  the  subject  of  the  action  was 

12  Heilbron   v.    Fowler    etc.    Canal  Last  Chance  etc.  Co.  v.  Emigrant  etc. 
Co.,  75  Cal.  426,  7  Am.  St.  Rep.  183,  Co.,  129  Gal.  277,  61  Pac.  960;  Des- 
17  Pae.  535 ;   Sacchi  v.  Bayside  Lum-  eret  etc.  Co.  v.  Mclntire,  16  Utah,  398, 
ber  Co.,  13  Cal.  App.  72,  108  Pac.  885  52  Pac.  628. 

(action  for  damages).  l8  Supra,  sec.  344;  Willey'v.  Decker, 

13  Heilbron  v.   Last  Chance  Water  11  Wyo.  496,  100  Am.  St.  Rep.  939, 
etc.  Co.,  75  Cal.  117,  17  Pac.  05.  73   Pac.   210    (citing   and   relying   on 

14  Gould   v.   Stafford,   101   Cal.   32,  Lower  Kings  River  etc.  Co.  v.  Kings 
35  Pac.  429.  etc.  Co.)  ;  Taylor  v.  Hulett,  15  Idaho, 

15  Supra,  sees.  320,  321.  265,  97  Pac.  39,  19  L.  R.  A.,  N.  S., 

16  Part  VI,  below.  535;   Slack  v.  Walcott,  3  Mason,  508, 
For  example,  a  South  Dakota  stat-       Fed.    Cas.    No.    12,932,    Story,   J.,   at 

ute  requires  the  State  Engineer  to  be  p.   516;    Mannville   Co.  v.   Worcester, 

served  with  pleadings  in  every  water  138    Mass.    91,    52    Am.    Rep.    261, 

suit  tried  in  the  State.     S.  D.  Stats.  Holmes,  J. 
1907,  c.  180,  sec.  15.  19  Lower   Kings  River   etc.   Co.  v. 

17  Lower   Kings   River   etc.   Co.    v.  Kings  River  Co. 
Kings    River   etc.    Co.,   60    Cal.    408; 


692  (3d  ed.)     Pt.  III.     THE  LAW  OP  PRIOR  APPROPRIATION.         §  632 


in  both  counties,  and  the  action  might  have  been  brought  in 
either. 

The  Idaho  court,  having  obtained  jurisdiction  over  the  person 
of  a  Wyoming  appropriator,  may  enjoin  him  from  injuring  an 
Idaho  appropriation,  though  only  Wyoming  courts  can  enforce  it 
after  obtaining  a  similar  decree  in  Wyoming,  based  on  that 
granted  by  Idaho.20  A  State  engaging  directly  in  diverting 
water  or  licensing  those  who  are,  may  be  sued  by  a  lower  State 
acting  as  '  'parens  patriae, ' '  and  the  Supreme  Court  of  the  United 
States  will  have  original  jurisdiction.21  Concerning  suits  regard- 
ing interstate  use  or  interstate  streams,  reference  is  made  to  a 
preceding  section  on  that  topic.22 

Venue  or  place  of  trial  in  an  action  to  abate  a  nuisance  lies 
where  the  injury  is  done,  being  a  local  action,  and  not  where  the 
defendants  reside.23  In  California,  actions  concerning  title  to 
realty  must  be  not  only  tried,  but  also  commenced  in  the  county 
where  the  realty  lies.24  Actions  to  quiet  title  to  water-rights  are 
within  this.25 

An  appeal  from  the  State  Engineer  to  a  State  court  is  remov- 
able to  the  Federal  court.1  A  suit  to  determine  priority  between 
appropriators  does  not  involve  a  Federal  question  merely  be- 
cause it  is  concerned  with  section  2339  of  the  Revised  Statutes 
of  the  United  States.2  A  suit  to  establish  water-rights  resting 
on.  Mexican  grant  involves  no  Federal  question,  per  se.s  A  suit 
by  a  State  to  annul  a  Carey  Act  grant  is  removable  to  the  Fed- 


20  Taylor  v.  Hulett,  15  Idaho,  265, 
97  Pac.  37,  19  L.  R.  A.,  N.  S.,  535. 

Compare  the  following:  Noxious 
vapors  created  in  New  Jersey  and 
passing  over  land  in  New  York  are 
actionable  in  New  York.  Ruckman 
v.  Green,  9  Hun,  225. 

21  Kansas   v.    Colorado,   185   U.   S. 
125,  22  Sup.  Ct.  Rep.  552,  46  L.  Ed. 
838. 

22  Supra,  sec.  340  et  seq. 

23  City     of     Marysville     v.     North 
Bloomfield    etc.   Co.,    66   Gal.    343,    5 
Pac.  507   (tailings  deposited  on  lands 
below  stream)  ;  Drinkhouse  v.  Water- 
works,   80    Gal.    308,    22     Pac.     252 
(threatened  injury  from  building   of 
a  dam,  injunction)  ;  Last  Chance  etc. 
Co.  v.  Emigrant  Co.,  129  Cal.  277,  91 
Pac.   960;    Litchfield  v.   International 
Co.,  58  N.  Y.  Supp.  856 ;  Cox  v.  Little 
Rock  Co.,  55  Ark.  454,  18  S.  W.  630. 

24  Const.,  art.  6,  sec.  5. 


25  Pacific  Club  v.  Sausalito  Co.,  98 
Cal.  487,  33  Pac.  322  (restraining 
order  only  incidental) ;  Fritts  v. 
Camp,  94  Cal.  393,  29  Pac.  867  (pol- 
lution of  a  stream  held  action  con- 
cerning title)  ;  Miller  v.  Madera  etc. 
Co.,  155  Cal.  59,  99  Pac.  502,  22  L. 
R.  A.,  N.  S.,  391;  but  see  Miller  v. 
Kern  Co.,  140  Cal.  133,  73  Pac.  836, 
holding  an  action  for  damages  only, 
to  a  ditch,  is  not  within  the  provision. 

1  Waha  etc.  Co.  v.  Lewiston  etc.  Co. 
(Idaho),  158  Fed.  137. 

2  Telluride  etc.  Co.  v.  Rio  Grande 
etc.  Co.,   175  U.   S.   639,  20   Sup.  Ct. 
Rep.  245,  44  L.  ed.  305. 

3  Crystal    Springs   Co.   v.   Los    An- 
geles, 177  U.  S.  169,  20  Sup.  Ct.  Rep. 
573,   44   L.    Ed.    720.     See   Boquillas 
etc.  Co.  v.   Curtis,  213  U.  S.  339,  29 
Sup.  Ct.  Rep.  493,  53  L.  Ed.  822.     See 
supra,  sec.  68. 


§§633,634  Ch.  27.     PROCEDURE.  (3ded.)  693 

eral  courts,  as  a  suit  arising  under  the  laws  of  the  United  States.4 
Organizing  a  foreign  corporation  in  order  to  get  into  the  Federal 
courts  on  the  ground  of  diversity  of  citizenship  may  become 
collusive  and  void.5 

(3d  ed.) 

§  633.  Joinder  of  Causes  of  Action. — A  count  for  an  injunc- 
tion may  be  joined  with  one  for  damages.6  A  count  for  diversion 
(injury  to  water-right)  and  for  injury  to  a  ditch  or  other  struct- 
ure used  in  connection  with  the  water-right  may  he  joined  but 
must  be  separately  stated.7  But  in  a  complaint  in  equity  to  en- 
join diversion  and  to  have  the  amount  of  water  to  which  plaintiff 
is  entitled  determined,  these  need  not  be  separately  stated.8  A 
count  as  appropriator  may  be  joined  with  one  as  riparian  owner.9 
A  plaintiff  claiming  alternatively  as  appropriator  and  riparian 
owner  and  also  under  a  contract  need  not,  it  is  held  in  Wash- 
ington, state  these  in  separate  counts.10 

(3d  ed.) 

§  634.    Pleading  (Continued) — Allegations  in  Complaint. — An 

appropriator 's  complaint  is  distinct  from  one  based  on  riparian 
rights;  and  an  allegation  that  plaintiff  claims  as  an  appropriator 
will  not  allow  him  to  recover  as  a  riparian  proprietor  or  vice 
versa.11  The  two  rights  may  be  set  up  in  the  same  complaint  by 
separate  counts.12  -The  appropriator  should  allege  that  he  is  en- 
titled to  the  use  of  so  much  water  as  an  appropriator,  not  that  he 
is  "the  owner"  thereof,13  He  need  not  allege  that  defendant  has 
no  right,  as  any  right  in  defendant  is  a  matter  for  the  defense 

4  State    v.    Three    Sisters    Irr.    Co.  Co.  v.  Hayes,  113  Cal.  142,  45  Pac. 
(Or.).  158  Fed.  346.  191. 

5  Miller    v.    East    Side    Canal    Co.  9  Semble,  Huffner  v.  Sawday,  153 
(1908),   211  U.   S.   293,   29   Sup.   Ct.  Cal.  86,  94  Pac.  424. 

Rep.  Ill,  53  L.  Ed.  189.     As  to  Fed-  10  Hutchinson    v.    Mt.    Vernon    W. 

eral    jurisdiction    on    ground    of    di-  Co.,  49  Wash.  469,  95  Pac.  1023. 

versity   of   citizenship,   see,   also,  An-  n  Riverside    etc.    Co.    v.    Gage,    89 

derson  v.  Bassman,  140  Fed.  10.  Cal.  410,  26  Pac.  889;   San  Luis  etc. 

«  Jacob  v.  Lorenz,  98  Cal.  332,  33  v.    Estrada,    117    Cal.    168,"  48    Pac. 

Pac.   119;   Watterson  v.  Salunbehere,  1075 ;  Strong  v.  Baldwin,  137  Cal.  432, 

101  Cal.  107,  35  Pac.  432;  The  Salton  70    Pac.    288.     See    Shenandoah    etc. 

Sea  Cases,  172  Fed.  820,  97  C.  C.  A.  Co.  v.  Morgan,  106  Cal.  409,  39  Pac. 

242;  but  see  Foreman  v.  Boyle,  88  Cal.  802.     But  ef.  Hutchinson  v.  Mt.  Ver- 

290,  26  Pac.  94,  semble  contra.  non  W.   Co.,  49   Wash.   469,   95   Pac. 

7  Nevada  etc.  Co.  v.  Kidd,  37  Cal.  1023. 

282;  Bear  River  Co.  v.  Boles,  24  Cal.  12  Huffner  v.  Sawday   (1908),  153 

359.  Cal.  86,  94  Pac.  424. 

8  Patterson  v.  Mills,  138  Cal.  276,  13  Smith  v.  Green,  109  Cal.  228,  41 
71  Pac.- 177;  and  see  Silver  Creek  etc.  Pac.  1022. 


694   (3d  ed.)     Pt.  III.     THE  LAW  OF  PRIOR  APPROPRIATION.         §  634 


to  plead.14  Likewise  plaintiff  need  not  allege  that  his  own  right 
has  not  been  lost  by  nonuser,  as,  if  it  has,  it  is  matter  of  defense, 
to  be  alleged  by  defendant;15  nor,  in  a  complaint  for  flooding 
his  land,  need  plaintiff  negative  that  defendant  ever  acquired  a 
right  to  do  so  by  condemnation.16  Plaintiff  need  allege  only  the 
ultimate  facts  showing  his  right  and  acts  of  defendant  which,  if 
unexplained,  would  be  an  invasion  thereof. 

A  statement  that  plaintiff  has  a  priority  as  appropriator 
superior  to  that  of  defendant  has  been  held  in  Colorado  not  a 
sufficient  allegation  of  plaintiff's  right,  without  the  facts  which 
show  such  appropriation  and  its  priority.17  But  that  is  unsound 
in  principle,  and  it  is  usually  held  that  title  need  not  be  deraigned 
in  the  complaint.18  "It  was  not  only  unnecessary,  but  it  would 
have  been  surplusage,  for  plaintiff  to  have  pleaded  the  historical 
deraignment  of  its  title  and  the  varying  methods  of  its  use."19 
The  contrary  rule  violates  the  principle  that  only  ultimate  facts, 
and  not  evidence,  are  to  be  pleaded ;  and  in  general,  the  extreme 
to  which  plaintiff  is  often  put  in  filling  a  complaint  with  subordin- 
ate matters  of  evidence  and  in  negativing  matters  properly 
defensive  (which  should  be  left  to  the  defense  to  plead)  if  they 
exist  at  all,  is  one  of  the  regrettable  traps  and  formalities  into 


14  Town  of  Sterling  v.  Pawnee  Co., 
42  Colo.  421,  94  Pac.  339,  15  L.  R.  A., 
N.  S.,  238. 

15  Corea  v.  Higuera,  153  Gal.  451, 
95  Pac.  882,  17  L.  R.  A.,  N.  S.,  1018. 

18  Bingham  v.  Walter  (1909),  80 
Kan.  617,  103  Pac.  120. 

17  Carroll  v.  Vance,  39  Colo.  216,  88 
Pac.  1069,  sed  qu.  In  Town  of  Ster- 
ling v.  Pawnee  etc.  Co.,  42  Colo.  421, 
94  Pac.  339,  15  L.  R.  A.,  N.  S.,  238, 
it  was  held  that  this  applied  to  a  bill 
to  quiet  title;  but  in  Kimball  v. 
Northern  Irr.  Co.,  42  Colo.  412,  94 
Pac.  333,  decided  about  the  same  time, 
the  rule  was  held  not  applicable  to 
bills  to  quiet  title,  but  only  to  bills 
for  injunction.  The  former  case  went 
so  far  even  as  to  hold  that  plaintiff 
must  plead  his  means  of  use  to  show 
that  it  is  not  wasteful.  See,  also, 
Hyatt,  J.,  in  Farmers'  etc.  Co.  v. 
Soutaworth  (1889),  13  Colo.  Ill,  21 
Pac.  1028,  4  L.  R.  A.  767;  Church  v. 
Stillwell,  12  Colo.  App.  43,  54  Pac. 
395;  Farmers'  Co.  v.  Agricultural  Co., 
3  Colo.  App.  255,  32  Pac.  722; 
Hackett  v.  Larimer  etc.  Co.  (Colo.), 
109  Pac.  965. 


An  allegation  in  a  complaint  to  en- 
join the  diversion  of  the  waters  of  a 
creek  that  defendant's  object  was 
purely  speculative  held  insufficient  to 
raise  an  issue  that  defendant's  diver- 
sion was  not  for  a  beneficial  use. 
Sternberger  v.  Seaton  etc.  Co.  (1909), 
45  Colo.  401,  102  Pac.  168,  saying: 
"The  complaint  should  state  the  facts 
as  to  what  particular  use  defendant 
has  made  or  proposes  to  make  of  its 
diversion  from  the  stream,  and  it  is 
for  the  court  to  determine  therefrom 
whether  or  not  the  use  is  a  lawful 
one." 

18  Corea  v.  Higuera,  153  Cal.  451, 
95  Pac.  884,  17  L.  R.  A.,  N.  S.,  1018; 
Wutchumna   Co.    v.    Pogue,    151    Cal. 
105,  90   Pac.  362;    Fudeckar  v.   East 
Riverside   Co.,    109   Cal.    36,   41   Pac. 
1024;   Beach  v.  Spokane  etc.  Co.,  25 
Mont.    379,    65    Pac.    Ill;    Hague   v. 
Nephi  etc.  Co.,  16  Utah,  421,  67  Am. 
St.  Rep.   634,  52   Pac.  765,  41  L.  R. 
A.  311;  Hutchinson  v.  Mt.  Vernon  Co., 
49  Wash.  469,  95  Pac.  1023. 

19  Wutchumna  Water  Co.  v.  Pogue, 
151  Cal.  105,  90  Pac.  362. 


§  635  Ch.  27.     PROCEDURE.  (3d  ed.)  695 

which  modern  procedure  has  fallen,  and  has  given  rise  to  much 
of  the  present  dissatisfaction. 

Although,  in  a  suit  to  quiet  title  to  an  irrigation  ditch,  the 
complaint  alleged  plaintiff  to  be  the  owner  of  the  ditch  in  fee, 
it  did  not  preclude  the  court  from  finding  a  right  or  ownership 
in  the  nature  of  an  easement.20  Title  by  prescription  can  be 
proved  under  a  general  allegation  of  ownership.21  Plaintiff's 
right  should  be  stated  in  inches  or  gallons,  and  not  merely  by 
dimensions  of  ditch.22  Averments  of  possession  of  land,  mill 
and  water  privileges  sufficiently  allege  appropriation.23  The 
place  'of  use  need  not  be  alleged.24 

A  former  decree,  to  be  relied  upon,  must  be  alleged  in  the 
complaint.25  A  right  to  the  use  of  an  irrigation  ditch  may  be 
alleged  in  general  terms,  without  detailed  allegation  of  owner- 
ship of  right  of  way,  headgate,  and  other  particular  details  inter- 
fered with.1  Complaint  against  water  officials  must  contain 
facts  showing  that  they  were  acting  in  excess  of  their  official 
authority.2  The  allegation  that  "defendant  is  informed  and  be- 
lieves" certain  facts  without  also  alleging  on  information  and 
belief  that  those  facts  do  exist  is  insufficient.3  An  allegation  that 
defendants  threatened  to  take  "the  waters"  of  the  river  has  been 
held  an  allegation  that  they  intended  to  take  all  of  it ; 4  but  an  alle- 
gation that  plaintiff  had  a  right  to  ' '  all  the  water  in  the  creek  dur- 
ing the  dry  season"  has  been  held  too  indefinite  for  specific  relief.3 

A  complaint  must  state  facts  sufficient  to  constitute  a  cause  of 
action.6 

(3d  ed.) 

§  635.     Alleging  Local  Customs. — The  local  customs  referred 

to  in  United  States  Revised  Statutes,  section  2339,  need  not  be  al- 
so Bashore  v.  Mooney,  4  Cal.  App.       wood   v.   Freeman    (1909),   15   Idaho, 

276,  87  Pac.  553.  395,  98  Pac.  295. 

21  Montecito  etc.  Co.  v.  Santa  Bar-  2  McLean  v.  Farmers'  etc.  Co.,  44 

bara,  144  Cal.  576,  594,  77  Pac.  1113.       Colo   184   98  Pac.  16. 

'      ,      .,  n  3  Swank  v.  Sweetwater  Co.  (1909). 

n  i  I1?,  9S9 v     7«   '  v-         '         15  Idaho>  353> 98  Pac-  297;  Bank  °* 

Cal.  181,  22  Pac.  76.  North  America  y    Rind       ('c    c>)    5J 

23  McDonald  v.  Bear  R.  etc.  Co.,  13       Fed.  279. 

Cal.  220,  1  Morr.  Min.  Rep.  626.  4  "Miller  v.  Bay  Cities  Co.,  157  Cal. 

24  Rincon  etc.  Co.  v.  Anaheim  etc.       256,   107   Pac.   115.     See,   also,  infra, 
Co.,   115  Fed.  543.     Contra,  Miller  &       sec.  639,  note  11. 

Lux  v.  Rickey,  127  Fed.  573.  5  Porter    v.    Pettingill    (Or.),    110 

25  Davis  v.  Chamberlain,  51  Or.  304,       Pac.  393. 

98  Pac.  154.  6  But    see    concurring    opinion    of 

i  Miller   v.   Kern   etc.   Co.    (1909),       Shaw,   J.,   in   Duckworth   v.    Watson- 

154  Cal.  785,  99  Pac.  179.     See  Lock-       ville  Co.,  158  Cal.  206,  110  Pae.  927. 


696  (3ded.)     Pt.  III.     THE  LAW  OF  PRIOR  APPROPRIATION.       §636 


leged  or  proved.  In  Oregon  and  Washington  there  has  been  some 
confusion  on  the  point  that  has  not  occurred  elsewhere.  The 
principle  is,  as  stated  in  Basey  v.  Gallagher,7  that  the  rules  of 
appropriation  have  everywhere  in  the  West  now  passed  into 
judicial  decision  or  statute  or  both,  thereby  superseding  the 
original  customs  on  which  decisions  and  statutes  are  based.  The 
Oregon  court  now  says  it  takes  judicial  notice  of  the  customs, 
reaching  the  same  result,  but  in  a  roundabout  way,  which  still 
bases  appropriation  on  custom  instead  of  on  decision  and  statute.8 
In  Washington9  it  is  held  that  judicial  notice  will  be  taken  of 
the  fact  that  at  least  that  portion  of  the  State  east  of  the  Cascade 
Mountains  was  included  in  the  territory  where  the  customary 
law  of  miners  was  in  force,  and  the  right  of  appropriating  water 
for  agricultural  and  manufacturing  purposes  existed,  although 
the  common-law  rule  of  riparian  ownership  was  a  part  of  the  law 
of  the  State.10  This  seems  to  be  making  separate  rules  for  sepa- 
rate parts  of  the  State.11 

(3d  ed.) 

§  636.     Evidence. — It  has  been  said 12  that  most  water  suits  are 
tried  upon  the  theory  that  each  would  avail  himself  of  what- 


7  87  U.  S.  (20  Wall.)  670,  22  L.  Ed. 
452,    1    Morr.    Min.    Rep.    683.     Cf. 
Drake  v.  Earhart,  2  Idaho,  716  (750), 
23  Pac.  543. 

8  Parkersville  etc.  Dist.  v.  Wattier 
(Or.),  86  Pae.  775. 

9  Isaacs  v.  Barber,   10  Wash.  124, 
45  Am.  St.  Rep.  772,  38  Pac.  871,  30 
L.  R.  A.  665. 

10  See,   also,   Drake  v.   Earhart,   2 
Idaho,  716  (750),  23  Pac.  541;  Craw- 
ford  etc.   Co.   v.   Hathaway,   67   Neb. 
325,  108  Am.  St.  Rep.  647,  93  N.  W. 
781,  60  L.  R.  A.  889.     But  see  Tel- 
luride  etc.  Co.  v.  Rio  Grande  etc.  Co., 
175  U.  S.  639,  20  Sup.  Ct.  Rep.  245, 
44  L.  Ed.  305,  and  187  U.  S.  579,  23 
Sup.  Ct.  Rep.  178,  47  L.  Ed.  307. 

11  See  supra,  sec.  112. 

In  the  early  California  days  it  was 
enacted:  "In  actions  respecting  min- 
ing claims,  proof  shall  be  admitted  of 
the  customs,  usages  or  regulations  es- 
tablished and  in  force  at  the  bar,  or 
diggings,  embracing  such  claim,  and 
such  customs,  usages,  or  regulations, 
when  not  in  conflict  with  the  constitu- 
tion and  laws  of  this  State,  shall 
govern  the  decision  of  the  action." 
Cal.  Stats.  1851,  Practice  Act,  sec. 


621,  now  sec.  748,  Code  Civ.  Proc. 
(This  statute  was  early  copied  in  al- 
most all  the  other'  Western  States; 
e.  g.  Utah  Rev.  Stats.  1898,  sec.  3521. 
See,  also,  Riborado  v.  Quang  Pang  M. 
Co.,  2  Idaho,  136  (144),  6  Pac.  125; 
MaDett  v.  Uncle  Sam  Mining  Co.,  1 
Nev.  188,  90  Am.  Dec.  484,  1  Morr. 
Min.  Rep.  17.)  It  is  many  years  since 
this  statute  has  been  even  referred  to 
in  California  water  cases,  the  reason 
being,  as  above  stated,  that  the  cus- 
toms have  long  been  superseded  by  de- 
cision and  statute  based  upon  them, 
both  as  to  waters  and  as  to  mines. 

Some  recent  statutes  provide  that 
local  customs  and  rules  shall  not  be 
displaced  thereby;  e.  g.,  N.  M.  Stats. 
1907,  p.  71,  sec.  57 ;  Idaho  Stats.  1905, 
p.  174,  amending  Stats.  1903,  p.  223, 
sec.  9. 

12  Hough  v.  Porter,  51  Or.  318,  195 
Pac.  732,  98  Pae.  1083,  102  Pac.  731. 
Another  recent  case  says:  "Perhaps 
there  is  in  all  water-right  cases  some 
mysterious  relation  between  the  quan- 
tity of  water  and  the  quantity  of 
language — a  law  of  supply  and  de- 
mand which  requires  that  the  volume 
of  language  shall  increase  in  direct 


§636 


Ch.  27.     PROCEDURE. 


(3ded.)  697 


ever  defense  the  court,  after  trial,  might  discover  he  had,  and,  as 
a  result,  plead  all  defenses  and  rights  available,  with  the  appar- 
ent hope  and  expectation  that  they  might,  at  least,  come  within 
hailing  distance  of  some  of  them;  and  this  dragnetic  system  of 
pleading  and  proof  is  not  unusual  in  the  trial  of  this  class  of 
cases.  Pursuant  to  such  policy,  the  litigants  introduce  all  evi- 
dence at  hand  deemed  likely  to  have  any  bearing  upon  the  case, 
regardless  of  the  claim  of  right  or  defense  under  which  their 
proof  might  eventually  be  classed;  a  very  loose  procedure,  how- 
ever, not  to  be  commended,  and  resulting  chiefly  from  the  con- 
fusion which  has  surrounded  rights  in  water  by  appropriation. 

The  party  alleging  the  existence  of  a  water-right  has  the  bur- 
den of  proof  and  must  prove  it  unequivocally.13  The  burden  of 
proving  an  abandonment 14  or  a  right  by  adverse  use  15  is  on  the 
party  asserting  it.  One  claiming  a  subsequent  appropriation  has 
the  burden  of  pro.ving  that  there  was  a  surplus  over  the  prior  ap- 
propriation.16 

The  value  of  expert  evidence  has  been  doubted.17  Expert  evi- 
dence is  not  admissible  as  to  whether  a  certain  body  is  a  lake  or 
a  running  stream.18 


ratio  to  the  deficiency  in  volume  of 
water."  Redwater  Co.  v.  Reed  (S.  D.), 
128  N.  W.  702. 

13  Smith  v.  Duff   (1909),  39  Mont. 
374,  133  Am.  St.  Rep.  582,  102  Pac. 
981. 

14  Supra,  see.  567. 

15  Supra,  sees.  579,  587. 

16  Petterson  v.  Payne,  43  Colo.  184, 
95  Pac.  301.     Perry  v.  Calkins  (Gal.), 
113  Pac.  136. 

17  Robertson  v.   Wilmoth,  40   Colo. 
74,  90  Pac.  95;   Twaddle  v.  Winters, 
22  Nev.  88,  85  Pac.  280,  89  Pac.  289. 

"In  its  investigation  the  court  can- 
not say  that  the  testimony  of  experts 
as  to  the  amount  of  water  used  or 
required  must  be  accepted  as  against 
the  farmers  of  the  vicinage  who  had 
been  living  in  the  valley  and  using 
the  water  for  several  years.  It  may 
be  difficult  for  the  courts  to  deter- 
mine with  mathematical  certainty  the 
precise  amount  of  water  running  in 
a  stream,  or  the  carrying  capacity  of 
ditches  and  flumes,  when  the  testi- 
mony, as  in  the  present  case,  is  con- 
flicting ;  but  the  experts,  who  ought  to 
know,  differ  as  widely  in  their  meas- 


urements as  do  the  ordinary  farmers 
in  their  method  of  calculation.  A  ref- 
erence to  what  was  said  by  this  court 
in  Union  Mill  &  Mining  Co.  v.  Dang- 
berg,  81  Fed.  99,  100,  without  cdm- 
ment,  shows  that  even  experts  are 
liable  to  make  mistakes  in  their 
methods  of  measuring  water,  and  in 
their  judgment  as  to  the  amount  of 
water  necessary  to  irrigate  an  acre  of 
land."  Rodgers  v.  Pitt,  129  Fed.  932. 

By  statute  in  Nevada  it  is  provided 
that  "the  court  is  hereby  authorized 
to  employ  a  hydraulic  engineer  or 
other  expert  to  examine  and  make 
report  under  oath  upon  any  subject 
matter  in  controversy,  the  cost  of  such 
employment  to  be  equitably  appor- 
tioned by  the  court  and  charged 
against  the  parties  to  the  suit  as 
costs.  Nev.  Stats.  1907,  p.  30,  sec. 
19.  Such  a  statute  was  held  uncon- 
stitutional in  People  v.  Dickerson 
(Mich.),  129  N.  W.  198. 

See,  also,  as  to  expert  evidence,  Los 
Angeles  v.  Hunter,  156  Cal.  603,  105 
Pac.  755 ;  Evans  v.  Lakeside  D.  Co., 
13  Cal.  App.  119,  108  Pac.  1027. 

18  Duckworth  v.  Watsonville  Co., 
158  Cal.  206,  110  Pac.  927. 


698  (3ded.)     Pt.  III.     THE  LAW  OF  PRIOR  APPROPRIATION.       §637 

It  has  been  said  that  testimony  as  to  the  quantity  of  water  re- 
quired for  proper  irrigation  of  lands  in  a  certain  vicinity  amounts 
only  to  opinion  evidence,19  and  that  the  estimate  by  the  nonexpert 
witnesses  as  to  the  quantity  of  water  in  a  ditch  or  diversion  must 
always  be  taken  with  caution.20 

Judicial  notice  has  been  taken  (without  actual  proof)  "that  the 
flow  from  irrigated  lands  is  heaviest  in  the  fall";21  that  where 
the  climate  is  arid  and  the  state  of  cultivation  high,  "the  court 
might  almost  take  judicial  notice  that  in  years  of  ordinary 
rainfall  there  is  no  surplus  of  water  in  the  stream  over  that  used 
by  the  various  owners  under  claim  of  right";22  that  light  sage- 
brush soil  requires  irrigation  to  make  it  productive ; 23  that  a 
claim  that  seventeen  inches  per  acre  is  needed  for  irrigating  land 
is  absurd.24 

Official  maps  of  the  State  Engineer  are  admissible  in  evidence 
without  authentication,  though  their  correctness  may  be  dis- 
puted by  evidence.25  Records  of  the  Federal  land  office  have 
been  held  not  admissible  to  prove  the  date  of  settlement  by  a 
riparian  owner  in  a  controversy  with  a  nonriparian  owner ; l  but  the 
recitals  in  a  certificate  of  final  entry  issued  by  the  local  land 
office  have  been  held  admissible  evidence  of  the  facts  so  recited.2 

Best  evidence  of  a  decree  entered  in  a  judgment-book  is  the 
decree  as  so  spread  on  the  records.3  Parol  proof  of  possession 
and  use  of  a  water-right  for  irrigation  is  prima  facie  evidence  of 
title.4 

(3d  ed.) 

§  637.     Damages. — In  alleging  damages,  the  quantity  of  water 

diverted  should  be  alleged,  and  recovery  will  be  limited  to  that; 

i»  Whited  v.  Cavin  (Or.),  105  Pae.  Pac.  481.     See  Nev.  Stats.  1909,  p.  31, 

396.  sees.  8,  26b. 

20  Ison  v.  Sturgill  (Or.),  109  Pac.  1  Driskill  v.  Rebbe,  22  S.  D.  242, 
579  117  N.  W.  1135. 

21  Smith  v.  Duff   (1909),  39  Mont.  *  ^"i"  SSS^Sfc  51  <VM' 
374,  133  Am.  St.  Rep.  582,  102  Pac.       gM*£  g5^    I75g  Wlllamette  C°"  V' 

3  Bates   v. 'Hall,   44  Colo.   360,   98 

22  Anaheim   W.   Co.   v.   Fuller,   150       pac_  3 

Cal.  335,  88  Pac.  978,  sed  qu.  4  'Bates   v.   Hall,   44  Colo.   360,   98 

23  Prescott  Irr.  Co.  v.  Flathers,  20  Pac.  3.     Evidence  held  insufficient  to 
Wash.   454,   55   Pac.   635.  sustain  a  finding  of  an  appropriation 

24  Whited  v.  Cavin  (Or.),  105  Pac.  of    water    for    a    specified    reservoir. 
396.  Windsor  Reservoir  &  Canal  Co.  v.  Lake 

25  Fanners'    etc.    Co.    v.    Riverside  Supply   Ditch   Co.,   44   Colo.   214,   98 
Irr.  Dist.    (1909),   16   Idaho,  52,   102  Pac.   729. 


§637  Ch.  27.     PROCEDURE.  (3ded.)   699 

but  as  the  allegation  of  amount  of  damages  is  not  a  material  part 
of  a  complaint,  proof  of  diversion  of  less  than  the  precise  quantity 
alleged,  while  limiting  damages  thereto,  is  not  a  bar  to  recovery.5 
The  damages  claimed  for  diversion  of  a  natural  stream  must  be 
for  the  injury  to  plaintiff's  enterprise  consequent  to  the  loss 
of  the  flow  and  use  of  the  water,  not  for  the  value  of  the  water 
at  so  much  per  inch  or  gallon,  since  plaintiff  does  not  own  the 
corpus  of  the  water,  but  a  usufruct.6  But  it  is  otherwise  with 
water  reduced  to  possession,7  and  for  that,  damages  may  be 
measured  by  the  reasonable  value  of  the  water  as  such;  that  is, 
where  a  trespasser  digs  a  well  and  is  notified  by  the  landowner 
to  quit  taking  water  or  be  charged  fifty  dollars  for  each  day 
water  is  taken,  the  landowner  may  get  an  injunction,  but  can 
recover  damages  only  for  reasonable  value,  of  the  water  as  such, 
and  not  at  fifty  dollars  per  day.8 

It  is  to  some  extent  the  duty  of  plaintiff  not  to  willfully  or 
affirmatively  increase  the  injurious  effect  of  defendant's  wrong- 
ful acts  after  they  have  been  committed.  (The  doctrine  of 
''avoidable  consequences,"  an  uncertain  point  in  the  law.)9 

Where  a  ditch  is  interfered  with,  not  wholly  destroying  its 
carrying  capacity,  but  greatly  increasing  the  difficulty  and 
expense  of  keeping  it  clean  and  in  repair,  and  the  interference 
is  of  a  permanent  character  (such  as  the  location  of  a  railway 
along  and  across  the  ditch),  plaintiff  may  recover  not  only  for 
loss  at  time  of  suit  but  also  prospective  damages.10 

Exemplary  damages  may  be  awarded  in  a  proper  case.11 

It  has  been  held  that  an  appropriator  cannot  recover  damages 
to  a  current  water-wheel,  caused  by  backing  water  so  as  to  reduce 

R  McDonald  v.  Bear  River  Co.,   15  MeCook   Irr.   <Jo.    v.    Crews,   70   Neb. 

Cal.  145,  1  Morr.  Min.  Rep.  639.  115,  102  N.  W.  249;   Cline  v.  Stock, 

6  Parks    etc.   Co.   v.   Hoyt,   57   Cal.  71  Neb.  70,  98  N.  W.  454,  102  N.  W. 
44. 

7  Ktmrn   SPP    30  pt  SPO  10  Denver     etc.     Co.     v.     Heckman 

*eq>    .     ,  (1909),  45  Colo.  470,  101  Pac.  976. 

8  Wright     v.     County    of     Sonoma       v          >>  ' 

(1909),  156  Cal.  475,  134  Am.  St.  Rep.  l  Cal  -Stats.   1885    c.   115    p.   98: 

140,  105  Pac.  409.     See  Hagerman  Co.  £owe  v.  Yolo  etc   Co    8  Cal.  App.  167, 

v.  McMurray  (N.  M.),  113  Pac.  823.  Pae-    3<9;    S.    C.,    157    Cal.    503, 

9  See  McLellan  v.   Brownsville  Co.  Fac'  J97' 
(Tei.    Civ.    App.),    103    S.    W.    206; 


700  (3d  ed.)     Pt.  III.     THE  LAW  OF  PKIOR  APPROPRIATION.         §  638 

the  velocity  of  the  stream  below  that  to  which  the  wheels  are 
adapted.12 


(3d  ed.) 

§  638.  Measure  of  Damages. — The  measure  of  damages  for 
failure  to  deliver,  or  for  diversion  of  water  for  irrigation,  or  for 
injury  to  a  ditch,  is,  where  plaintiff  has  no  crops  (the  injury 
having  prevented  him  from  beginning  cultivation),  the  deprecia- 
tion in  permanent  value  (sale  or  rental  value)  of  plaintiff's 
estate  in  the  land  from  loss  of  water,13  being  the  difference 
between  the  market  value  of  the  land  or  plaintiff's  estate  therein 
prior  to  the  injury  and  after  the  injury,14  and  not  the  value  of 
producible  crops.15  In  determining  the  value  of  the  land,  a  plan 
or  adaptability  to  use  land  for  a  reservoir  site  cannot  be  con- 
sidered in  determining  its  market  value.16 


12  Schodde  v.  Twin  Falls  etc.  Co. 
(Idaho),  161  Fed.  43,  88  C.  C.  A.  207, 
sed  qu.  See  supra,  sees.  310  et  seq., 
313. 

is  Burrows  v.  Fox  (Cal.),  30  Pac. 
768;  Denver  etc.  Co.  v.  Dotson,  20 
Colo.  304,  38  Pac.  322  (destruction  of 
a  ditch)  ;  Young  v.  Extension  D.  Co., 
13  Idaho.  174,  89  Pac.  296;  City  of 
Florence  'v.  Calmet,  43  Colo.  510,  96 
Pac.  183;  Stock  v.  Hillsdale,  155 
Mich.  375,  119  N.  W.  435;  Crow  v. 
San  Joaquin  Co.,  130  Cal.  310,  62  Pac. 
562,  1058;  Pallett  v.  Murphy,  131 
Cal.  192,  63  Pac.  366. 

14  Ibid. 

The  measure  of  damages  for  perma- 
nent injury  to  land  resulting  from 
pollution  of  a  stream  by  mining  or 
sewage  is  the  difference  between  the 
market  value  of  the  land  prior  to  the 
injury  and  after  the  injury.  Morris 
v.  Missouri  Ry.  (1909),  136  Mo.  App. 
393,  117  S.  W.  687.  See  Kellogg  v. 
City  of  Kirksville,  132  Mo.  App.  519, 
112  S.  "W.  296,  concerning  measure 
of  damages  for  pollution. 

15  Reisert   v.    New   York,   69   App. 
Div.  302,  74  N.  Y.  Supp.  673    (Gag- 
non  v.  Molden,  15  Idaho,  727,  99  Pac. 
765,  holding  evidence  of  improvements 
made    in    anticipation    of    receiving 
water  not  admissible  in  evidence). 

16  Especially    not,    when    the    pro- 
posed plan  is  unpractical   and   fanci- 
ful.    In  re  Board  of  Water  Supply, 


58  Misc.  Rep.  581,  109  N.  Y.  Supp. 
1036. 

The  California  court  has  recently 
said  in  this  connection:  "It  is  seen, 
therefore,  that  this  court  by  its  latest 
utterances  has  definitely  aligned  itself 
with  the  great  majority  of  the  courts 
in  holding  that  damages  must  be 
measured  by  the  market  value  of  the 
land  at  the  time  it  was  taken;  that 
the  test  is  not  the  value  for  a  spe- 
cial purpose,  but  the  fair  market  value 
of  the  land  in  view  of  all  the  pur- 
poses to  which  it  is  naturally  adapted ; 
that  therefore  while  evidence  that  it 
is  'valuable'  for  this  or  that  or  an- 
other purpose  may  always  be  given 
and  should  be  freely  received,  the 
value  in  terms  of  money,  the  price, 
which  one  or  another  witness  may 
think  the  land  would  bring  for  this 
or  that  or  the  other  specific  purpose 
is  not  admissible  as  an  element  in 
determining  that  market  value.  For 
such  evidence  opens  wide  the  door  to 
unlimited  vagaries  and  speculations 
concerning  problematical  prices  which 
might  under  possible  contingencies  be 
paid  for  the  land,  and  distracts  the 
mind  of  the  jury  from  the  single 
question — that  of  market  value — the 
highest  sum  which  the  property  is 
worth  to  persons  generally,  purchas- 
ing in  the  open  market  in  considera- 
tion of  the  land's  adaptability  for  any 
proven  use."  Sacramento  etc.  Ry.  Co. 
v.  Heilbron  (1909),  156  Cal.  408,  104 
Pac.  979. 


638 


Ch.  27.     PBOCEDUEE. 


(3ded.)  701 


But  where  cultivation  has  actually  begun  and  there  are  growing 
crops,  the  measure  of  damages  is  not  only  the  loss  (if  any)  in 
permanent  value  of  plaintiff's  estate,  but  also  the  value  of  the 
producible  crop  (probable  value  at  maturity,  and  not  merely  at 
time  of  destruction)  less  the  expense  of  producing  and  marketing 
it.17  In  such  case  evidence  is  admissible  of  the  loss,  during  the 
water  shortage,  in  value  of  the  crops  naturally  produced  as  com- 
pared with  those  produced  by  plaintiff  in  previous  years,18  and  of 
the  difference  in  value,  at  the  time  the  water  is  shut  off,  of  the 
crop  with  a  water-right,  and  its  value  without  one,19  and  of  the 
size  and  market  value  of  crops  on  neighboring  land ; 20  and,  it  has 
been  held,  the  actual  net  loss  of  money  profit  on  the  crops  in  mar- 
keting them ; 21  and  the  value  of  any  portion  of  the  crop  saved 
may  be  deducted.22  Evidence  is  admissible  (against  a  public 


17  California. — Teller  v.  Bay  etc. 
Co.,  151  Cal.  209,  90  Pac.  942,  12  L. 
E.  A.,  N.  S.,  267;  Dennis  v.  Crocker 
etc.  Co.  (1910),  6  Cal.  App.  58,  91 
Pac.  425;  Salstrom  v.  Orleans  etc.  Co., 
153  Cal.  551,  96  Pac.  292;  Lowe  v. 
Yolo  etc.  Co.,  157  Cal.  503,  108  Pac. 
297 ;  Sacchi  v.  Bayside  Lumber  Co.,  13 
Cal.  App.  72,  108  Pac.  885. 

Colorado. — Northern  etc.  Co.  v. 
Eichards,  22  Colo.  450,  45  Pac.  423; 
Tubbs  v.  Roberts,  40  Colo.  498,  92 
Pac.  220. 

Montana. — Carron  v.  Wood,  10 
Mont.  500,  26  Pac.  388;  Watson  v. 
Colusa  etc.  Co.,  31  Mont.  513,  79  Pac. 
14. 

Nebraska. — Clague  v.  Tri-State  etc. 
Co.,  84  Neb.  499,  133  Am.  St.  Eep. 
637,  121  N.  W.  570. 

Nevada. — Candler  v.  Washoe  Lake 
Co.,  28  Nev.  151,  80  Pac.  751,  6  Ann. 
Gas.  946. 

New  Mexico. — Smith  v.  Hicks,  14 
N.  M.  560,  98  Pac.  136,  reviewing  the 
authorities  extensively. 

Texas. — Gulf  etc.  Co.  v.  McGowan, 
73  Tex.  355,  11  S.  W.  336;  San  An- 
tonio etc.  Co.  v.  Kiersey  (Tex.  Civ. 
App.),  81  S.  W.  1045. 

Utah. — Lester  v.  Highland  Boy  Co., 
27  Utah,  470,  101  Am.  St.  Rep.  988, 
76  Pac.  341,  1  Ann.  Cas.  761. 

Washington. — Shotwell  v.  Dodge,  8 
Wash.  337,  36  Pac.  254;  Hutchinson 
v.  Mt.  Vernon  etc.  Co.,  49  Wash.  469, 
95  Pac.  1023. 

Where  there  are  growing  crops  and 
several  years  elapse  before  the  injury 


is  complete,  the  landowners  are  en- 
titled to  damages  for  the  loss  in  value 
of  their  land  and  also  for  the  yearly 
injury  to  their  crops  caused  by  the 
continuing  nuisance.  Watson  v.  Co- 
lusa, Parrott  Min.  etc.  Co.,  31  Mont. 
513,  79  Pac.  14,  measure  of  damages 
for  pollution. 

18  Hutchinson    v.    Mt.    Vernon    W. 
Co.,  49  Wash.  469,  95  Pac.   1023. 

19  Clague  v.   Tri-State  Co.    (1909), 
84  Neb.  499,   133  Am.   St.  Rep.   637, 
121  N.  W.  570. 

20  Smith  v.   Hicks,   14  N.   M.   560, 
98  Pac.  144;  Lester  v.  Highland  etc. 
Co.,  27  Utah,  470,  101  Am.  St.  Eep. 
988,   76   Pac.   341,   1   Ann.   Cas.   761; 
Dennis  v.  Crocker  etc.  Co.,  6  Cal.  App. 
58,    91   Pae.    425    (damage   to    crops 
from  flooding). 

21  Tubbs  v.  Eoberts,  40  Colo.  498, 
92  Pac.  220. 

22  Candler  v.  Washoe  etc.   Co.,  28 
Nev.   151,  80  Pae.  751,  6  Ann.  Cas. 
946. 

In  a  recent  case,  logging  operations 
caused  overflow  which  injured  dairy 
land.  Plaintiff  holding  the  land  by  a 
lease,  the  measure  of  damages  was 
held  to  be  the  loss  in  value  of  his 
leasehold,  and  evidence  was  allowed 
of  special  adaptability  of  his  land  for 
certain  crops;  of  the  yield  of  previous 
years ;  the  number  of  cows  grazed  the 
previous  year;  of  having  to  rent  new 
land  to  feed  his  cows  after  the  flood; 
cost  of  destroyed  headgates;  work  re- 
quired to  replace  old  conditions ;  cost 
of  feed  purchased  for  cows;  and  vari- 


702  (3ded.)     Pt.  III.     THE  LAW  OF  PRIOR  APPROPRIATION.         §639 

service  company  refusing  to  supply  water  for  irrigating  land)  of 
the  cost  of  restoring  the  land  to  the  condition  it  would  have  been 
in  if  supplied  with  water,  and  the  value  of  its  use  during  the 
time  lost.23 

If  one  alleges  only  loss  of  profits  from  crops,  evidence  of  loss 
of  rental  value  of  the  land  has  been  held  inadmissible.24 

(3d  ed.) 

§  639.     Decree. — Decrees  should  be  as  definite  as  language  ean 

make  them.25  ''A  practical  view  ought  to  be  taken  of  all  the 
conditions,  surroundings  and  situations.  The  rights  of  all  parties 
must  be  protected  by  the  decree.  The  difficulty  of  enforcing 
it  without  the  necessity  of  bringing  independent  suits  should 
be  avoided,  if  possible.  Certainty  in  its  terms,  positiveness  in  its 
requirements,  justice  in  its  conclusions,  will  materially  aid  in  the 
accomplishment  of  such  a  purpose."  1  Decrees  awarding  a  party 
"enough  to  irrigate  his  land,"2  or  "sufficient  water  for  house- 
hold purposes"3  or  "one  good  irrigation  stream  of  \vater, "4 
have  been  held  defective  for  uncertainty.  A  decree  should 
specify  second-feet  or  definite  fractions  of  a  stream,5  and  not 
merely  dimensions  of  ditch.6  If  a  decree  is  based  on  capacity  of 

ous  other  details.     Sacchi  v.  Bayside  24  North  Alabama  etc.  Co.  v.  Jones, 

Lumber  Co.,  13  Cal.  App.  72,  108  Pac.  156  Ala.  360,  47   South.   144,  sed  qu. 

885.  The  quantum   of   damages  in  the   ad 

In  one  ease   (Lester  et  al.  v.  High-  damnum  clause  is  usually  held  an  im- 

land  Boy  Gold  Min.  Co.,  27  Utah,  470,  material  allegation. 

101  Am.  St.  Rep.  988,  76  Pae.  341,  1  25  Authors  v.  Bryant,  22  Nev.  242, 

Ann.  Cas.   761),  the  court  says:   "In  38     Pac.     439;     Patterson    v.     Ryan 

cases  of  destruction  of  growing  crops  (Utah),  108  Pac.  1118. 

it  is  proper  and  important  to  intro-  1  Judge  Hawley,  in  Union  Mining 

duce  and  admit  evidence  showing  the  Co.  v.  Dangberg,  81  Fed.  73. 

kind  of  crops  the  land  is  capable  of  2  Walsh  v.   Wallace,  26  Nev.   299, 

producing,     the    kind    of    crops    de-  99   Am.   St.   Rep.   692,   67   Pac.   914; 

stroyed,  the  average  yield  per  acre  of  Leavitt  v.  Lassen  Irr.  Co.  (1909),  157 

each  kind  on  the  land  not  destroyed  Cal.    82,    106    Pac.    404      (modifying 

and  on  other  similar  lands  in  the  im-  Stanislaus   W.    Co.    v.    Bachman,    152 

mediate    neighborhood,    cultivated    m  Cal.   716,  93   Pac.   858,   15  L.   R.   A., 

like  manner,  the  stage  of  growth  of  N.  S.,  359) ;  Lassen  Irr.  Co.  v.  Long, 

the   crops,   at   the   time   of   injury   or  157  Cal.  94,  106  Pac.  409. 

destruction,  the  expense  of  cultivating,  3  Powers  v.  Perry,  12  Cal.  App.  77, 

harvesting   and   marketing   the   crops,  106  Pac.  595. 

and  the  market  value  at  the  time  of  4  Smith  v.  Phillips,  6  Utah,  376,  23 

maturity,  or  within  a  reasonable  time  Pac.  932. 

after  the  injury  or  destruction  of  the  5  Nephj  etc.  Co.  v.  Vickers,  15  Utah, 

crops."  374,  49  Pac.  301. 

23  Lowe   v.   Yolo    Co.    (1910),    157  6  Lakeside  etc.  Co.  v.  Crane,  80  Cal. 

Cal.  503,  108  Pac.  297,  saying  it  may  181,  22  Pae.  76.     See  Logan  v.  Guich- 

be  different  where  the  destruction  is  ard   (Cal.  1911),  114  Pac.  989,  hold- 

of  growing  trees,  which  cannot  be  re-  ing    "water    to    the    extent    of    three 

stored.  inches"   too   uncertain. 


§639  Ch.  27.     PROCEDURE.  (3d  eel.)   703 

ditch  alone,  it  is  erroneous,  as  it  should  be  further  limited  to 
beneficial  use,  or  a  limitation  to  beneficial  use  will  be  implied 
and  read  into  the  decree.7  Concerning  this,  reference  is  also 
made  to  preceding  sections.8 

No  definite  quantity  of  water  can  be  decreed  where  the  evi- 
dence does  not  disclose  the  amount  entitled.9  But  a  decree  not 
specifying  the  number  of  acres  to  be  irrigated  is  not  necessarily 
void.10 

Where  a  court  finds  that  plaintiff  is  entitled  to  the  use  of  all 
the  water  from  October  1st  to  May  1st,  each  year,  and  the 
amount  is  difficult  to  ascertain,  the  decree  may  enjoin  defend- 
ants absolutely  during  that  period  without  specifying  any 
quantities.11 

A  decree  concerning  a  water-right  does  not  per  se  concern  a 
ditch,  and  vice  versa.12 

''The  point  is  made  that  the  decree  should  have  permitted  the 
defendants  to  divert  the  water,  on  condition  that  they  returned 
it  to  the  river  above  plaintiff's  lands,  no  less  diminished  than  it 
would  have  been  in  its  natural  flow  to  the  point  of  return.*  It 
may  be  that  a -decree  so  limited  would  have  been  proper  if  the 
evidence  had  shown  that  the  defendants  were  able  and  willing 
to  make  such  return  of  the  water. ' ' 13 

A  decree  concerning  a  stream  governs  also  as  to  its  tributaries.14 
An  erroneous  entry  of  a  decree  in  the  judgment-book  may  be 
amended  to  speak  the  truth  as  to  what  the  decree  was.15  A 
decree,  except  in  cases  where  a  large  number  of  parties  have  been 
brought  in  and  the  proceedings  have  been  lax,  is  presumed  satis- 
factory, on  appeal,  as  to  those  not  appealing.16 

7  Infra,  sec.  642.  63    Pae.    1045;    Nevada    etc.    Co.    v. 

«  Supra,  sees.  471,  478;  infra,  sec.  >Ki<*d, 3L  Cal-  2*2-    , 
642  i3  Huffner  v.  Sawday,  153  Cal.  86, 

TI        u  /innfiN    KA  r\  94  Pac.  424.     Citing  Gould  v.  Eaton, 

<AO  S^oPT  V>  ?0anSw(  v}i  117  Cal.  539,  49  Pac  577,  38  L.  R.  A 
448,  103  Pac  58  1007;  Rodgers  v.  Montecito  Valley  Co.  v.  Santa 

Overacker,  4   Cal.  App.  333    8,    Pac.  Bark          144  Cal>  578^  77  Pac>  m3< 

1107.     See,  also,  infra,  sees.  883,  884.  s       ^  Mmer  y   ^  atieg  c      ^ 

10  Bates  v.   Hall,  44  Colo.  360,  98  Cal_  256,  107  Pac.  115. 

Pac.  3.  14  Josslyn  v.  Daly,   15  Idaho,   137, 

11  Miller  v.  Bay  Cities  W.  Co.,  157       96  Pac.  568. 

Cal.  256,  107  Pac.  115;  Los  Angeles  15  Bates  v.  Hall,  44  Colo.  360,  98 
v.  Hunter,  156  Cal.  603,  105  Pac.  755,  Pac.  3,  dictum,  holding  decree  as  en- 
citing  Vernon  Irr.  Co.  v.  Los  Angeles,  tered  binding,  however,  until  corrected 
106  Cal.  237,  39  Pac.  762 ;  City  of  in  the  book. 

Los  Angeles  v.  Pomeroy,  124  Cal.  597,  16  Hough  v.  Porter,  51  Or.  318.  95 

57  Pac.  585.     See  Porter  v.  Pettingill  Pac.  732,  98  Pac.  1083,  102  Pac.  728; 

(Or.),  110  Pac.  393.  Seaweard  v.  Duncan,  47   Or.   640,  84 

12  Parke  v.  Boulware,  7  Idaho,  490,  Pac.  1043. 


704  (3d  ed.)     Pt.  III.     THE  LAW  OF  PRIOR  APPROPRIATION.         §  640 

A  decree  is  not  res  adjudicata  as  to  rights  purchased  by  one  of 
the  parties  subsequent  to  the  decree  from  a  stranger  to  the  suit.17 
How  far  a  decree  based  upon  the  common  law  of  riparian  rights 
is  res  adjudicata  after  the  State  has  changed  the  law  and  repu- 
diated that  doctrine,  quaere.™ 

The  court  can  make  reasonable  regulations  in  the  decree  for 
its  enforcement,  fixing  the  times,  quantity  and  manner  of  taking 
the  water.19 

As  to  decrees  under  the  special  water  code  procedures  for 
determining  rights,  reference  is  made  to  a  later  chapter.20 

Service  of  process  (upon  parties  to  the  suit)  by  publication 
will,  in  some  cases,  be  sufficient  to  support  decrees  in  rem  or 
quasi  in  rem;21  but  no  decree,  whether  in  rem  or  in  personam, 
can  bind  persons  who  were  not  made  parties  (nor  in  privity 
with  parties)  to  the  action.22 

(3d  ed.) 

§  640.    Miscellaneous  Matters  of  Practice. — Summons  may  be 

served  by  publication  in  a  newspaper  where  the  statutes  so  pro- 
vide, and  the  action  is  one  in  rem  or  quasi  in  rem,  and  the  defend- 
ants so  served  are  unknown  or  concealed  or  out  of  the  State.23 
In  confirmation  proceedings  upon  the  organization  of  irrigation 
districts,  the  statutes  usually  provide  service  by  publication.24 

The  facts  and  existence  of  a  nuisance  to  a  water-right  and  the 
amount  of  damages  are  to  be  tried  by  a  jury  in  a  suit  at  law 
for  damages  unless  a  jury  is  waived.25  But  there  is  no  right  to 

17  Josslyn  v.  Daly,  15  Idaho,  137,  entitled  to  the  use  thereof,  the  costs 
96  Pac.  568.  for    which    should    be    taxed    against 

18  See  Union  Mining  Co.  v.  Dang-  each  in  such  proportion  as  the  court 
berg,  81  Fed.  73.  may  deem  just  and  equitable."     Hough 

19  Burr  v.   Maclay  R.   Co.    (1909),  v.   Porter,   51   Or.   318,   95   Pac.   732, 
154  Cal.  428,  98  Pac.  260 ;  Hough  v.  98  Pac.  1083,  102  Pac.  728.     See,  also, 
Porter    (1909),   51   Or.   318,   95   Pac.  Whited  T.  Cavin  (Or.  1909),  105  Pac. 
732,  98  Pac.  1083,  102  Pac.  728.  396. 

"If,  at  any  time  deemed  necessary  20  Infra,  sec.  1222  et  seq. 

by   it,    the   court   should   require   the  21   ,   .              122? 
sheriff,  or  other  officer  or  person  as  it 

may  designate  for  the  purpose,  includ.-  52  Supra,  sec.  625  et  seq. 

ing  an  engineer  or  other  assistant,  as  23  See  infra,  sec.  1227. 

may  be  required,  to  fix  at  the  points  24  See  Knowles  v.  New  Sweden  Irr. 

of    diversion    or    other    proper   places  Dist.  (1909),  16  Idaho,  217,  101  Pac. 

suitable   boxes   or   headgates,   with    a  81,  holding  the  defendant  in  that  case 

view  to  being  able,  in  accordance  with  not  entitled  to  personal  service  as  dis- 

this  decree,  properly  to  measure,  regu-  tinguished  from  the  publication, 

late,  and  distribute  the  water  between  25  Chessman  v.  Hale,  31  Mont.  557, 

those  who,  under  this  decree,  may  be  79  Pac.  257,  68  L.  R.  A.  410. 


§640  Ch.  27.     PROCEDURE.  (3ded.)705 

a  jury  in  a  suit  in  equity  for  injunction,  though  joined  with  a 
claim  for  damages.1  A  jury  in  equity  cases,  if  one  is  had,  is 
only  advisory.2 

Costs  may  be  awarded  or  apportioned  as  the  court  may  deem 
proper,  or  each  party  adjudged  to  pay  his  own  costs,  where  the 
result  of  the  suit  is  beneficial  to  all.3 

Defendants  may  file  cross-bills.4  In  an  action  by  a  riparian 
owner,  defendant's  claim  as  appropriator  is  properly  set  up  by 
a  cross-complaint.5 

To  authorize  a  private  person  to  maintain  an  action  to  abate 
a  public  nuisance,  he  must  show  a  special  injury  different  in  kind, 
and  not  merely  in  degree,  from  that  suffered  by  the  public  gener- 
ally.8 

Where  a  court  of  equity  has  acquired  jurisdiction  of  a  suit  to 
enjoin  a  continuing  trespass  upon  land,  it  may  also,  t  to  prevent 
a  multiplicity  of  suits,  award  damages  for  the  injury  already 
done,  although  the  same  would  also  be  recoverable  by  an  action 
at  law.7 

Ordinarily,  a  judgment  by  default  will  not  be  disturbed;  but 
water  suits  being  sui  generis,  the  court  may  exercise  its  discre- 
tion, and  where  a  quantity  of  water  was  awarded  to  plaintiff, 
as  against  nonanswering  defendants,  far  greater  than  necessary 
for  his  use,  the  decree  will  be  modified  by  reducing  the  quantity.8 

Water  codes  and  special  statutes  providing  water  commis- 
sioners are  elsewhere  considered ; 9  but  without  statute,  courts 
may  appoint  commissioners  to  enforce  decrees,10  or  appoint  a 
receiver.11  Pending  irrigation  litigation  a  bond  may  be  given  in 

1  McCarthy  v.  Gaston  etc.  Co.,  144  6  Arizona   Copper   Co.   v.    Gillespie 
Cal.  542,  78  Pac.  7.  (Ariz.),  100  Pac.  465. 

2  Pealer  v.  Gray's  etc.  Co.   (1909),  7  The  Salton  Sea  Cases,  172  Fed. 
54  Wash.  415,  103  Pac.  451;  Davis  v.  792,  97  C.  C.  A.  214. 

Martin,  157  Cal.  657,  108  Pac.  866.  8  Whited  v.  Cavin   (Or.),  105  Pac. 

3  Hough  v.  Porter,  51  Or.  318,  95       396. 

Pae.  752,  98  Pac.  1083,  102  Pac.  728;  9  Infra,  Part  VI.  Compare,  some- 
Boise  etc.  Co.  v.  Stewart,  10  Idaho,  what  differently,  Mont.  Laws  1909,  p. 

38,  77  Pac.  31,  321.     As  to  costs,  see,       ,  House  Bill,  106;  Laws  1905,  p. 

also,  Ison  v.  Sturgill  (Or.),  110  Pac.  145;  Laws  1911,  c.  43,  p.  72. 

535.  10  Montezuma  Co.  v.  Smithville  Co. 

See,  also,  infra,  sec.  1231.  (Ariz.),   218  U.   S.   371,  31   Sup.  Ct. 

4  Rickey  etc.  Co.  v.  Wood,  152  Fed.  Rep.   67,  45  L.  Ed.   1074   (citing  the 
22,   81   C.   C.   A.   218;    Ames  etc.   Co.  second  edition  of  this  book);  Sullivan 
v.  Big  Indian  etc.  Co.,  146  Fed.  166.  v.  Jones  (Ariz.),  108  Pac.  476. 

5  Van  Bibber  v.  Hilton,  84  Cal.  585,  n  Idaho  Fruit  Co.  v.  Great  Western 
24  Pac.  308,  598.  Co.,  17  Idaho,  273,  105  Pac.  562. 

Water  Rights — 45 


706   (3d  ed.)     Pt.  III.     THE  LAW  OF  PEIOE  APPROPRIATION.         §  641 

lieu  of  an  injunction.12    An  injunction  has  been  held,  in  Califor- 
nia, not  in  force  until  the  order  is  entered  in  the  proper  book.13 


C.     INJUNCTION. 
(3d  ed.) 
§  641.     Irreparable  Injury. — The  most  efficient  remedy  is,  of 

course,  the  writ  of  injunction,  whereby  interference>  is  stopped 
forthwith.  The  chief  requisites  to  support  a  case  for  an  injunc- 
tion are  as  follows : 

The  injury  involved  must  be  irreparable.14  An  injury  to  a 
ditch  which  will  not  destroy  its  efficiency  and  can  be  easily 
repaired  will  not  support  a  case  for  an  injunction — the  owner 
will  be  left  to  his  less  drastic  remedies.15 

Instances  of  irreparable  injury  are  such  as  pollution  of  the 
water,  or  that  the  life  of  fruit  trees  will  be  destroyed,16  or 
threatened  destruction  of  headgates  and  other  water  appliances.17 

This  element  (irreparable  injury)  is  not  present  where  plain- 
tiff has  already  taken  or  can  easily  take  means  to  prevent  the 
injury,18  or  where  defendant  has  abated  the  nuisance  before  the 
decree,19  an  injunction  will  be  refused. 

(3d  ed.) 

§  642.  Injuria  Sine  Damno. — As  to  all  rights  not  depending 
upon  use,  a  continuous  violation  may  be  an  irreparable  injury 
without  causing  actual  present  damage ;  since  the  continued  vio- 
lation, if  not  stopped,  may  ripen  into  a  title  by  prescription 
divesting  the  title  of  the  owner.  Nominal  damages  will  be  given 
at  law,  or  on  injunction  in  equity.  This  is  the  well-established 
doctrine  of  "injuria  sine  damno."  The  action  in  such  case  is 

12  Cal.   Code   Civ.   Proc.,   sec.   532;       243;  Hudson  v.  Dailey,  156  Cal.  617, 
and   probably   this   is    within   the   in-       105  Pac.  748. 

herent  power  of  a  court  of  equity  in  16  Smith  v.  Stearns  Rancho  Co.,  129 

the  absence  of  statute.  Cal.    58,    61    Pac.    662 ;    Cushman    v. 

13  Rickey  L.   &   W.    Co.   v.   Glader  Highland  Ditch  Co.,  3  Colo.  App.  437, 
(1908),  153  Cal.  179,  94  Pac.  768.  33  Pac.  344.     Regarding  pollution,  see 

14  Ladd  v.  Redle,  12  Wyo.  362,  75  supra,   sec.   522. 

Pac.  691;  Krause  v.  Oregon  Steel  Co.,  17  Hayois  v.  Salt  R.  Co.   (1903),  8 

77  Pac.  833;  Watts  v.  Spencer,  51  Or.  Ariz.  285,  71  Pac.  944. 

262,  94  Pac.  39 ;  Strang  v.  City  of  New  18  Atchison    v.    Peterson,    1    Mont. 

York,  127  N.  Y.  Supp.  231.    "  561,  20   Wall.  507,  22  L.  Ed.  414,   1 

15  Clark  v.  Willett,  35  Cal.  534,  4  Morr.  Min.  Rep.  583. 

Morr.  Min.  Rep.  628 ;  Lorenz  v.  Wai-  19  McCarthy  v.  Gaston  etc.  Co.,  144 

dron,  96  Cal.  243,  31  Pac.  54;  Jacobs       Cal.  542,  78  Pac.  7. 
v.  Day,  111  Cal.  571,  at  580,  44  Pac. 


§  642  Ch.  27.     PROCEDURE.  (3d  ed.)  707 

allowed  for  the  vindication  and  preservation  of  plaintiff's  title.120 
The  chief  illustration  is  in  regard  to  rights  of  way  over  land. 
Claiming  and  exercising  adversely  a  right  of  way  over  another's 
land  does  him  irreparable  injury  if  continued,  because,  if  not 
stopped,  a  prescriptive  right  to  the  way  will  in  time  arise,  and 
although  the  landowner  never  uses  that  portion  of  his  land  and 
suffers  no  present  damage  from  the  mere  passing  over  it,  yet  he 
would  finally  lose  his  title  to  it,  or  suffer  an  encumbrance  thereto. 
Consequently  ditch-building  over  private  land  will  be  absolutely 
enjoined,  even  though  the  actual  money  damage  as  yet  suffered 
by  the  landowner  is  nominal  only.21  So  likewise  the  continued 
flooding  of  another's  land  will  be  enjoined;  and  even  though  the 
flood  has  already  occurred  and  completely  ruined  the  land,  yet 
the  title  thereto  still  remains  to  be  protected.22  So,  also,  under 
the  common  law  of  riparian  rights,  since  a  riparian  proprietor 
may  use  the  water  when  he  will  or  not  at  all  (his  right  not 
depending  upon  present  use),  he  may  enjoin  any  diversion 
(beyond  a  reasonable  riparian  use  of  another  riparian  proprie- 
tor) although  showing  no  actual  present  use  or  present  damage,  if 
the  diversion  in  time  would,  by  prescription,  impair  the  plaintiff's 
capacity  to  use  the  water  on  his  land  when  he  will  in  the  future.23 
And  so  also,  under  the  earlier  history  of  the  law  of  prior  appropria- 
tion, when  the  appropriator's  right  was  primarily  a  possessory 
one  to  the  flow  of  a  portion  of  the  stream  to  capacity  of  ditch, 
rather  than  a  right  to  a  use,  the  doctrine  of  injuria  sine  damna 
was  applied  to  protect  the  flow  to  that  capacity,  whether  plain- 
tiff was  using  the  water  or  not  (so  long  as  he  did  not  mean  to 
abandon  it),  and  although  he  suffered  no  actual  present  damage 
to  use  of  the  water.  Consequently  we  find  Professor  Pomeroy, 
writing  in  former  days,  saying:24  "Hence,  also,  the  complaint 

20  Brown  v.   Ashley,    16   Nev.   312.  189,  Fed.  Cas.  No.  17,322,  a  great  case 

It  was  first  fixed  by  the  decision  of  in  the  law  of  riparian  rights.     Infra, 

Lord  Holt  in  Ashby  v.  White,  2  Ld.  sec.  816. 

Raym.  938,  92  Eng.  Reprint,  126,  con-  21  Vestal   v.   Young,   147   Cal.   715, 

sidered  one  of  his  greatest  decisions,  721,    82    Pac.    381,    383;    Winslow   v. 

having  been  a  case  where  a  voter  was  Vallejo,    148    Cal.    723,    113    Am.    St. 

allowed    to   recover    damages    against  Rep.   349,   84  Pac.    191,   5  L.   R.   A., 

one  who  prevented  him  from  voting,  N.  S.,  851.     See  supra,  sec.  221  et  seq., 

though  his  vote  was  intended  for  the  ditches  on  private  land, 
man  who  in  fact  won  the  election  and  22  The  Salton  Sea  Cases,  172  Fed. 

the    voter    hence    suffered    no    actual  792. 
damage.     It  was  first  clearly  applied  23  Infra,  sec.  816. 

to    water-rights   by   Justice    Story   in  24  Pomeroy  on  Riparian  Rights,  p. 

Webb  v.  Portland  Cement  Co.,  3  Sum.  108,  sec.  69. 


708   (3d  ed.)     Pt.  III.     THE  LAW  OF  PRICE  APPROPRIATION.         §  642 

in  an  action  by  an  appropriator  of  water  to  restrain  the  unlaw- 
ful diversion  of  the  stream  need  not  allege  that  the  plaintiff  is 
in  a  position  to  use  the  water  himself,"  etc.  In  the  note  are  col- 
lected a  number  of  earlier  authorities  applying  this  to  the  rights 
of  appropriators  of  water.25 

But  there  has  been  a  change  going  steadily  forward  in  the 
law  of  prior  appropriation;  namely,  the  transition  we  have  fre- 
quently pointed  out  from  a  possessory  system  to  one  depending 
upon  use.1  Actual  use,  rather  than  actual  diversion,  to-day 
creates  the  right;  beneficial  use  rather  than  capacity  of  ditch 
measures  it;  nonuse  rather  than  voluntary  abandonment  loses 
it;  and  in  the  present  connection  present  damage  to  actual  use 
is  becoming  necessary  to  secure  injunctions.  Cases  now  are 
refusing  an  injunction  to  an  appropriator  who  is  not  using  the 
water,  and  granting  it  only  where  he  is  using  it  and  suffers 
actual  present  damage  to  present  use  from  defendant 's  act.  The 
modern  rule  is  to  regard  injunctions  granted  to  appropriators 
as  based  strictly  upon  beneficial  use  and  as  not  restraining  a 
defendant  while  the  plaintiff  is  not  himself  using  the  water, 
even  if  the  decree  does  not  (as  it  should)  expressly  so  declare;2 
so  that  only  where  there  is  actual  damage  to  present  use  would 
an  injunction  be  granted  to  prevent  prescription.  In  the  absence 
of  such  damage  no  prescription  would  arise.3  Injunction  will 
not  be  granted  where  the  act  would  not  ripen  into  an  easement, 
and  causes  no  actual  damage,  as  where  there  is  water  enough 

25  Moore  v.  Clear  Lake  etc.  Co.,  68  43  Colo.  268,  95  Pac.  932;  Drach  T. 

Cal.    146,    8    Pac.    816;    Stanford    v.  Isola    (Colo.),    109   Pac.    748;    Mann 

Felt,  71  Cal.  249,  16  Pac.  900;  Conk-  v.  Parker,  48  Or.  321,  86  Pac.   598; 

ling  v.  Pacific  etc.  Co.,  87  Cal.  296,  25  Gardner   v.    Wright,    49    Or.   609,    91 

Pae.  399;  Walker  v.  Emerson,  89  Cal.  Pac.  286;  Crawford  etc.  Co.  v.  Needle 

456,  26  Pac.  968;  Spargur  v.  Hurd,  90  Rock  etc.  Co.    (Colo.),   114  Pae.   655. 

Cal.  221,  27  Pac.  198;  Mott  v.  Ewing,  See,  also,  infra,  sec.  1231  et  seq. 
90  Cal.  231,  27  Pac.  194;   Barnes   v.  "Whenever  it  is  not  needed  by  the 

Sabron,    10   Nev.   217,   4   Morr.   Min.  plaintiffs,  it  should  be  turned  to  the 

Rep.  673 ;  Rigney  v.  Tacoma  etc.  Co.,  defendants,  if  they  have  any  beneficial 

9  Wash.  576,  38  Pac.  147,  26  L.  R.  A.  use  for  it,  and  not  permitted  to  waste. 

4^5;   Lytle   Creek   Co.  v.   Perdew,   65  It  may  be  implied  by  the  law;  but  it 

Cal.  447,  4  Pac.  426;  Union  Min.  Co.  is  better  to  have  decrees  specify,  and 

v.  Dangberg,  81  Fed.  73,  citing  cases.  especially  so  in  this  case,  in  view  of 

See  cross-references  supra,  sec.  139.  the  testimony  stated  and  of  the  per- 

1  See    cross-references    supra,   sec.  petual  injunction,  that  the  award  of 
139.  water  is  limited  to  a  beneficial  use  at 

2  Gotelli  v.   Cardelli,   26   Nev.   382,  such  times   as  it  is   needed."     Twad- 
69   Pac.   8;    Twaddle   v.   Winters,   29  die  v.  Winters,   29   Nev.   88,  85   Pac. 
Nev.   88,   85   Pac.   283,   89   Pac.   289;  280,  89  Pac.  289. 

Medano   etc.  Co.  v.  Adams,  29  Colo.          3  Supra,  sec.  588. 
317,  68  Pae.  431;  Woods  v.  Sargent, 


§643  Ch.27.     PROCEDURE.  (3ded.)   709 

for  all,4  or  where  the  diversion  is  during  plaintiff's  nonuse.5  In 
stating  the  distinction  between  the  law  of  appropriation  and  that 
of  riparian  rights  in  this  respect  it  has  been  said:  "In  so  far, 
however,  as  the  rights  of  plaintiffs  rest  upon  prior  appropria- 
tion and  use,  it  was  no  doubt  necessary  for  them  to  show  that 
the  proposed  diversion  would  diminish  the  flow  of  water  which 
they  had  been  receiving  for  use  upon  their  lands,"6 

At  the  same  time,  while  this  change  has  been  going  steadily 
forward,  it  is  not  complete.7  The  chief  thing  to  be  noted  is 
the  period  (fixed  by  statute,  usually)  before  nonuse  causes  for- 
feiture of  right;  which  statutory  period  implies  that  the  rule  of 
injuria  sine  damno  applies  to  protect  a  flow  (although  unused) 
during  the  statutory  period.  Reference  is  made  to  other  sec- 
tions in  this  regard.8 

As  the  remedy  sought  in  water  cases  is  usually  by  injunction, 
most  of  the  fundamental  questions  of 'the  law  of  waters  can  be 
viewed  as  wrapping  themselves  around  the  application  of  the 
rule  of  injuria  sine  damno,  to  those  who  prefer  to  take  up  the 
law  from  the  standpoint  of  procedure,  for  this  admitted  rule 
can  never  be  applied  without  first  deciding  what  the  nature 
of  the  right  is. 

(3d  ed.) 

§  643.  Prospective. — The  damage  must  be  prospective.  The 
interference  must  be  likely  to  continue  in  the  future,  or  there 
must  be  a  threat  of  continuance.9  An  injury  to  a  ditch  already 

4  dough  v.  Wing,  2  Ariz.  364,  17  8  See    cross-references    supra,   sec. 

Pac.   453;    Davis   v.   Chamberlain,   51  139;   especially  sees.  476  et  seq.,  and 

Or.  304,  98  Pac.  154;  Bates  v.  Hall,  577. 

44  Colo.  360,  98  Pac.  3,  and  cases  just  It  should  be  further  noted  that  the 

above  cited.  change  mentioned  is  in  regard  to  in- 

T>             e-i    /-v'     010    oc  junctions    or    actions     for    damages. 

T>      ^ogQO%        i6n^    irS%       VPS  The   rule   of   injuria   sine   damno   re- 

Pac.  732,  98  Pac.  1083,  102  Pac    728,  ma}ns  unimpairea  even  under  the  law 

citing  cases      See  cases  collected  gen-  ior      £          iation    in    equitable 

erally  sees.  4,8   481,  supra,  under  the  billsp«     ^  ^me£,  guch  as  act\ons  to 

topic  "Beneficial  Use.  remoye  ft  doud  upOQ  tme      guch  a<J. 

6  Huffner  v.   Sawday,   153   Cal.  86,  tions   lie   in   favor   of    appropriates 
94  Pac.  424.     Italics  ours.  to-day  even  though  the  hostile  claim 

7  Consider,  for  example,  the  incon-  has   not    yet   caused    actual   damage, 
sistency  between  Moore  Clear  Lake  W.  Whited  v.  Cavin  (Or.),  105  Pac.  396; 
Co.   (supra),  68  Cal.  146,  8  Pac.  816,  Carnes  v.  Dalton  (Or.),  110  Pac.  170. 
and  Smith  v.  Hawkins,  110  Cal.  122,  »  Tenney  v.  Miners'  etc.  Co.,  7  Cal. 
42  Pac.  453;   Smith  v.  Hawkins,  120  340,   11   Morr.   Min.   Rep.  31;    Orcutt 
Cal.  87,  52  Pae.   139,  19   Morr.  Min.  v.  Pasadena  L.  &  W.  Co.   (1908),  152 
Rep.  243.  Cal.  599,  93  Pac.  497. 


710   (3ded.)     Pt.  III.     THE  LAW  OF  PRIOR  APPROPRIATION.         §644 

accomplished  in  the  past  will  not  support  a  case  for  an  injunc- 
tion.10 

(3d  ed.) 

§  644.     Laches. — There  must  be  no  laches  or  delay.11     Parties 

who  have  appropriated  water  for  irrigation  purposes  pursuant 
to  law,  and  continued  the  use  of  water  under  such  appropriation 
for  more  than  seven  years,  cannot  be  enjoined  from  the  continued 
use  of  such  right  by  a  lower  riparian  owner  whose  mill  privilege 
may  be  injured  thereby.  His  remedy  is  an  action  for  damages.12 
Where  a  ditch  is  built 'over  one's  land,  his  remedy  after  delay 
is  solely  for  damages.  He  cannot  destroy  it  by  force.  On  the 
contrary,  force  will  be  enjoined.13  The  proprietor  who  waits 
two  years,  for  example,  after  the  wrongful  act,  has  been  held 
to  have  no  right  to  an  injunction.14  Laches  is  a  favored  defense 
to  a  public  service  company  because  of  the  public  interest 
involved.15 

The  defense  of  laches  is  not  made  out  where  defendant  was 
urged  solely  by  extreme  necessity  for  water,  hoping  plaintiff 
would  not  interfere,  but  proposing  to  continue,  nevertheless,  until 
plaintiff  prevented  him.  Holding  that  no  laches  was  shown  in 
the  case,  it  is  said:16  "It  is  suggested  that,  although  the  facts 
found  may  come  short  of  creating  an  estoppel,  they  are  suffi- 
cient to  show  that  the  plaintiffs  are  barred  by  their  laches.  It 
is  well-established  doctrine  that  the  defense  of  laches  does  not 
rest  entirely  upon  lapse  of  time,  nor  require  any  specific  period 
of  delay,  as  does  the  statute  of  limitations.  But  in  order  to 
constitute  laches,  there  must  be  something  more  than  mere  delay 

10  Tuolumne  etc.  Co.  v.  Chapman,  cene  etc.  Co.  v.  Jacobsen,  146  Fed. 
8  Cal.  392,  11  Morr.  Min.  Rep.  34;  680,  77  C.  C.  A.  106.  Cf.  McCook  v. 
Clark  v.  Willett,  35  Cal.  534,  4  Morr.  Crews,  70  Neb.  115,  102  N.  W.  249. 

^•^•^  L°£M  V>  Waldron'  96  14  Loud  Gold  M.  Co.  v.  Blake   (C. 

uai.  Z4cs,  di  rac.  04.  c  j    24  Fed    £49     Tho  Wood. 

o«J  ™V'  K^8™*  i  T?  'I  ma°'  23  Kan-  217  33  Am.  Rep.  156; 
?™'r6i  ^17  int;T>  718  VifDaiey'  Clark  v.  Cambridge  Irr.  Co,  45  Neb. 
~6,1Cai'  5in'™°5  So  ;  V<  798,  64  N-  W-  239.  See  Lux  v.  Hag- 
Holland,  179  Fed.  969  gin  69  Cal.  255,  10  Pac.  674;  Monte- 

v    w   ^Vin?^r    W    9<5  '  SB  etc.   Co.   v.   Santa   Barbara,    144 

N'i, ^      '       !         TS  Cal-    578,    77     Pac.    1113.     See/also, 

13  The  case  turned  also  on  peculiar       gtock  y_  fc.      of  Hillsdale  (ig^}    155 

facts  regarding  Alaska  mining  claims,  Mich_  3?5    fa  N   w    ^  t  ^ 

on  the  balance  of  convenience,  on  the  ' 

fact    that    the    ditch    owner    was    en-  5  Infra,  sec.  651. 

titled  to  condemn   right  of  way,  and  16  Verdugo     W.     Co.     v.     Verdugo 

on  something  like  blackmail  by  claim  (1908),   152   Cal.   655,   93   Pac.   1021, 

owners  and  other  peculiar  facts.     Mio-  per  Mr.  Justice   Shaw. 


§645  Ch.27.     PROCEDURE.  (3ded.)  711 

by  the  plaintiff,  accompanied  by  an  expenditure  of  money  or 
effort  on  the  part  of  the  defendant.  It  must  also  appear  that 
it  will  be  inequitable  to  enforce  the  claim.  The  reason  upon 
which  the  rule  is  based  is  not  alone  the  lapse  of  time  during 
which  the  neglect  to  enforce  the  right  •  has  existed,  but  the 
changes  of  condition  which  may  have  arisen  during  the  period 
in  which  there  has  been  neglect." 

Laches  or  acquiescence  must  be  distinguished  from  estoppel, 
elsewhere  considered,  as  estoppel  would  bar  a  right,  and  there 
must  be  some  degree  of  turpitude  to  raise  it,  whereas  laches  but 
bars  an  injunction  because  of  lack  of  diligence  in  seeking  the 
remedy  while  leaving  an  action  at  law  for  damages.17 

(3d  ed.) 

§  645.     Making  Out  Right  at  Law. — There  is  no  necessity  of 

first  making  out  the  legal  right  at  law.18  In  Lux  v.  Haggin, 
the  court  says:  ''Under  our  codes  the  riparian  proprietor  is  not 
required  to  establish  his  right  at  law  by  recovering  a  judgment 
in  damages  before  applying  for  an  injunction.  The  decisions 
(in  cases  of  alleged  nuisances)  based  on  the  failure  of  the  com- 
plainant to  have  had  his  right  established  at  law  have  no 
appositeness  here.  Here  the  plaintiff  must,  indeed,  clearly  make 
out  his  right  in  equity,  and  show  that  money  damages  will  not 
give  him  adequate  compensation.  If  he  fails  to  do  this,  relief  in 
equity  will  be  denied;  but,  if  he  proves  his  case,  relief  will  be 
granted,  although  he  has  not  demanded  damages  at  law.  In  the 
case  at  bar  the  plaintiffs  do  not  admit  that  damages  would  con- 
stitute compensation,  and  ask  for  an  injunction  until  they  shall 
•recover  such  compensation  in  an  action  for  damages.  The 
decisions  which  bear  on  that  class  of  cases,  and  which  require 
of  the  plaintiff  to  show  that  he  has  promptly  sought  redress  at 
law,  have  little  applicability. ' ' 19 

At  the  same  time,  in  cases  of  exceptional  difficulty,  where 
there  is  grave  conflict  of  evidence,  and  where  an  action  at  law 
for  damages  is  already  begun  before  the  injunction  was  applied 

17  See  supra,  see.  593  et  seq.,  es-  appropriator  in  the  Tuolumne  case, 
toppel.  on  the  ground  that  legal  and  equi- 

T>  18  ^   T  HiaggiD>  f  rah  25rv,ar        table  relief  under  the  combined  or  re-  * 
Pac.  674;  Tuolumne  etc.  Co.  v.  Lnap- 

inan,  8  Cal.  392,  11  Morr.  Min.  Rep.  formed   practice   are   administered   in 

34.  the  same  court  (whenever  the  equitable 

l»  While  this  is  said  of  a  riparian  ruies  are  not  overlooked), 
proprietor,  the  same  was  said  of  an 


712  (3d  ed.)     Pt.  III.     THE  LAW  OF  PRIOR  APPROPRIATION         §  646 

for,  it  is  advisable  (though  not  compulsory)  to  have  the  right 
first  established  at  law.20 

(3d  ed.) 

§  646.    Mandatory   Injunction    (Abatement   of  Nuisance   by 

Suit). — Mandatory  injunctions  may  be  granted  to  order  abate- 
ment of  a  nuisance,  such  as  the  removal  of  the  means  of  diver- 
sion,21 or  removal  of  a  railway  embankment,22  or  the  removal 
of  an  obstruction  from  the  stream,23  or  to  compel  the  removal 
of  dams24  which  have  wrongfully  diverted  water  onto  plaintiff's 
property,  the  effect  of  which  will  be  to  destroy  trees  and  cut 
gulches,  although  plaintiff  has  not  established  his  right  to  dam- 
ages by  a  verdict  of  jury  or  finding  of  court,25  or  to  put  in  a 
measuring-box,1  or  to  compel  restoration  of  the  water  diverted.2 
Acts  may  be  ordered  done  in  another  jurisdiction.3 

The  decree  may  be  molded,  enjoining  on  condition,  instead  of 
mandatory.  Thus  pollution  by  tailings  from  a  gold  quartz-mill 
will  be  enjoined  at  suit  of  a  prior  appropriator  whose  use  for 
irrigation  is  impaired  thereby,  the  decree  being  framed  to 
restrain  the  operation  of  the  defendant's  mill  "until  it  has  made 
suitable  provision  to  prevent  injury  to  plaintiff's  irrigating 
ditches,  and  to  the  water  used  by  him. ' ' 4 

(3d  ed.) 

§  647.    Defenses  to  Injunction. — By  way  of  defense   to   an 

injunction  suit,  the  defense  that  the  water  would  not  reach 
plaintiff  anyway  has  often  been  asserted,  and,  the  authorities 
conflict  where  the  acts  of  defendant  are,  within  possibility,  a  eon- 

20  McCarthy  v.  Bunker  Hill  etc.  Co.  101  Pac.  168   (part  of  a  dam  ordereu 
(Idaho).   164   Fed.   927,   92   C.   C.  A.  taken  down);   The  Salton  Sea  Cases, 
259.  172  Fed.  792,  820,  97  C.  C.  A.   214, 

21  Rigney   v.    Tacoma    etc.     Co.,   9  242. 

Wash.  576,  38  Pac.  147,  26  L.  R.  A.  25  Allen   v.   Stowell,    145    Cal.   666, 

425    (removal    of    dam)  ;    Ramsay   v.  104  Am.  St.  Rep.  80,  79  Pac.  371,  68 

Chandler,  3  Cal.  90,  4  Morr.  Min.  Rep.  L.  R.  A.  223. 

240 ;    Nicholson   v.    Getchell,    96   Cal.  1  Elliott  v.  Whitmore,  10  Utah,  246, 

394,  31  Pac.  265.  37  Pac.  461. 

22  International   etc.   Ry.    V.   Davis  2  Montecito  etc.  Co.  v.  Santa  Bar- 
(Tex.  Civ.  App.),  29  S.  W.  483.  bara,  144  Cal.  578,  77  Pac.  1113. 

23  Nicholson    v.   Getchell,    96    Cal.  3  The   Salton   Sea   Case:;,   172   Fed. 
394,  31  Pac.  265;  Johnson  v.  Superior  820,  97  C.  C.  A.  242. 

Court,  65  Cal.  567,  4  Pac.  576 ;  Evans  *  Brown  v.  Gold  Coin   etc.  Co.,  48 

v.  Ross  (Cal.),  8  Pac.  88  (dictum').  Or.  277,  86  Pac.  361.     For  a  case  re- 

24  Bingham    v.  Walter    (1909),  80  fusing    a    mandatory    injunction,    see 
Kan.   617,   103   Pac.   120;    Wilhite  v.  Lanham  v.  Wenatchee  Co.,  48   Wash. 
Billings  etc.  Co.   (1909),  39  Mont.  1,  337,  93  Pac.  522. 


§648  Ch.  27.     PROCEDURE.  (3ded.)  713 

tributing  cause.  Injunction  was  granted,  for  example,  in  one 
case,*  saying  such  defense  is  as  old  as  irrigation  and  perhaps  as 
old  as  trespass  itself.6  In  denying  the  validity  of  the  defense, 
a  recent  case  says  that  while  the  natural  flow  may  not  reach 
plaintiff  on  the  surface,  the  upper  diversion  might  deprive  him 
of  the  benefit  of  the  subflow.7 

(3d  ed.) 

§  648.    Balance    of    Inconvenience    Between    the    Parties. — 

Another  defense  on  which  the  authorities  are  in  great  conflict 
is  that  known  as  "the  balance  of  convenience"  or  "comparative 
hardships."  The  cases  conflict  as  to  the  propriety  of  the  rule 
as  to  balance  of  convenience  and  also  as  to  its  application.  It 
is  sometimes  said  that  the  balance  of  convenience  will  not  be 
considered ; 8  that  slight  damage  to  plaintiff  is  no  defense,9  and 
that  expense  to  defendant  is  not  to  be  considered.10 

In  one  case  it  is  said  that  it  is  not  enough  for  defendant  to 
say  that,  admitting  plaintiff's  right  to  be  a  substantial  one, 
defendant  in  invading  it  does  so  because  he  cannot  otherwise 
work  his  mine,  and  will  take  all  precaution  to  keep  the  money 
damage  small.  That  is  no  defense  to  an  injunction,  the  court 
held,11  saying:  "But  even  had  the  defendants  after  having 
admitted  the  property  rights  of  plaintiffs  in  their  ditch,  as 
alleged  in  their  complaint,  admitted  their  intention  to  wash  away 
the  ground  upon  which  it  was  constructed,  as  alleged  by  plain- 
tiffs, and  alleged  .in  justification  of  such  purpose  their  design  to 
substitute  in  place  of  so  much  of  plaintiff's  ditch  as  they  should 

6  Morris  v.  Bean,  146  Fed.  436.  sec.    562,   note   24.     See   22   Harvard 
0  For   examples   where   the   injunc-       Law  Review,  596,  note. 

tion  was   refused  on  a  showing  that  .        9  Carron   v.   Wood,   10   Mont.   500, 

the  stream  would  dry  up  anyway  be-  26    Pac.    388,    and    cases    heretofore 

fore   reaching  plaintiff,   or  not   reach  cited. 

him  for  other  reasons,  see  Paige  v.  10  Cole  Silver  M.  Co.  v.  Virginia 
Rocky  Ford  etc.  Co.,  83  Cal.  84,  21  etc.  Co.,  1  Saw.  470,  7  Morr.  Min. 
Pac.  1102,  23  Pac.  875;  Union  Min.  Rep.  503;  Fed.  Cas.  No.  2989;  Suf- 
Co.  v.  Dangberg  (C.  C.  Nev.),  81  Fed.  folk  etc.  Co.  v.  San 'Miguel  etc.  Co., 
73;  Raymond  v.  Wimsette,  12  Mont.  9  Colo.  App.  407,  48  Pac.  828.  See 
551,  33  Am.  St.  Rep.  604,  31  Pac.  537;  Wilhite  v.  Billings  etc.  Co.  (1909),  39 
Gutierrez  v.  Wege,  145  Cal.  730,  79  Mont.  1,  101  Pac.  168. 
Pac.  449;  West  Point  etc.  Co.  v.  "Against  a  clear  and  explicit  rule 
Maroni  etc.  Co.,  21  Utah,  229,  61  Pac.  of  law,  no  argument  from  inconveni- 
16;  Booth  v.  Trager  (1909),  44  Colo.  ence,  however  forcibly  urged,  can  pre- 
409,  99  Pac.  60.  See  supra,  sec.  279.  vail."  Judge  John  R.  Garber  in  Van 

7  Huffner  v.  Sawday,   153   Cal.  86,  Sickle  v.  Haines,  7  Nev.  249. 

94  Pac.  424.     See  infra,  sec.  1078.  n  Gregory  v.  Nelson,  41   Cal.   278, 

8  6  Pomeroy's  Equitable  Remedies,       at  289,  12  Morr.  Min.  Rep.  124. 


714  (3ded.)     Pt.  III.     THE  LAW  OF  PRIOR  APPROPRIATION.         §648 

wash  away,  a  flume  or  metal  pipe  for  conducting  the  water  for 
the  use  of  plaintiffs,  and  that  such  flume  or  pipe  would  answer 
plaintiffs'  purposes  as  well  as  the  ditch,  with  a  prayer  that  the 
court,  by  its  judgment  and  decree,  authorize  them  to  consummate 
their  designs,  upon  their  filing  a  bond  payable  to  plaintiffs,  con- 
ditioned to  keep  such  flume  or  metal  pipe  in  repair  until  plaintiffs' 
claims  should  be  worked  out,  I  know  of  no  principle  of  law  or 
power  in  a  court  of  equity  to  justify  or  authorize  such  an  in- 
vasion of  the  property  rights  of  one  private  party  to  serve  the 
wishes,  convenience  or  necessities  of  another  private  party.  Such 
a  principle,  if  once  adopted  by  judicial  tribunals  upon  ground  of 
necessity  in  view  of  the  peculiar  relations  and  character  of  private 
property  rights  of  miners  on  the  public  domain,  would  readily  be 
invoked  as  applicable  to  other  property  rights,  and  its  practical 
application  would  result  in  a  system  of  judicial  condemnation  of 
the  property  of  one  citizen  to  answer  an  assumed  paramount 
necessity  or  convenience  of  another  citizen.  It  is  the  duty  of 
courts  to  protect  a  party  in  the  enjoyment  of  his  private  property, 
not  to  license  a  trespass  upon  such  property  or  to  compel  the 
owner  to  exchange  the  same  for  other  property  to  answer  private 
purposes  or  necessities."  12 

On  the  other  hand,  many  cases  say  that  because  of  the  rule 
known  as  the  "balance  of  convenience,"  an  injunction  may  be 
refused; 13  that  is,  because  the  loss  to  the  appropriator  (plaintiff) 
would  be  small,  as  compared  to  the  loss  to  the  defendant  if  his 
works  were  enjoined.  Thus,  no  injunction  will  be  granted  if  the 
defendant  will  restore  to  the  stream  the  amount  he  has  been  tak- 
ing from  it.14  "Where  the  title  to  the  property  is  in  dispute 
between  the  parties,  the  extent  of  inconvenience  and  expense  to 
which  the  defendant  would  be  subjected  by  the  granting  of  the 

12  See  Pomeroy  on  Riparian  Rights,   '    Bunker   Hill   Co.    (Idaho),    164   Fed. 
see.  67;  Weiss  v.  Oregon  etc.  Co.,  13  927,  92  C.  C.  A.  259;   City  of  Aber- 
Or.   496,   11   Pac.   255;    High   on   In-  deen  v.   Lytle  etc.   Co.    (Wash.),   108 
junctions,  sec.  795 ;  Woodruff  v.  North  Pac.  945 ;  William  v.  Heath,  1  L.  T., 
Bloomfield   etc.    Co.,    18    Fed.    753,   9  N.   S.,   267;    Shaw   J.,    concurring   in 
Saw.  441;  Teel  v.  Rio  Bravo  Oil  Co.,  Miller  v.  Bay  Cities  W.  Co.,  157  Gal. 
47  Tex.  Civ.  App.  153,  104  S.  W.  423.  256,  107  Pac.  115,  citing  Peterson  v. 

13  Slade  v.  Sullivan,  17  Cal.  102,  7  Santa  Rosa,  119  Cal.  391,  51  Pac.  557; 
Morr.  Min.  Rep.  419 ;  Clark  v.  Willett,  Jacob   v.    Day,    111     Cal.     571,     580, 
35  Cal.  534,  4  Morr.  Min.  Rep.  628;  44  Pac.  243;   2  High  on  Injunctions, 
Heilbron  v.  Fowler  etc.  Canal  Co.,  75  4th  ed.,  sec.  470;  2  Beach  on  Injunc- 
Cal.  426,  7  Am.  St.  Rep.  183,  17  Pac.  tions,  sec.  1067. 

535;    Modoc    etc.    Co.   v.    Booth,    102  14  Montecito  etc.  Co.  v.  Santa  Bur- 

Cal.   151,  36  Pac.   431;    McCarthy  v.       bara,  144  Cal.  578,  77  Pac.  1113. 


§648  Ch.  27.     PROCEDURE.  (3ded.)715 

injunction,  as  compared  with  the  injury  the  plaintiff  would  be 
likely  to  suffer  if  refused,  often  forms  an  important  consideration 
in  determining  the  right  to  an  injunction."15  The  refusal  of  an 
injunction  because  of  the  rule  concerning  the  balance  of  conven- 
ience is  perhaps  illustrated  in  the  following  case.  A  mining  com- 
pany was  depositing  tailings  upon  land  below  its  mill.  For  the 
purpose  of  speculation,  plaintiff  bought  up  this  land,  and  asked 
an  injunction.  That  was  refused  on  the  ground  that  it  would 
mean  ruin  to  the  mining  company,  and  plaintiff  had  bought  the 
land  merely  with  a  view  to  litigation.16  It  was  held  in  another 
case  that  where,  in  an  action  to  recover  damages  and  to  enjoin 
defendant  from  maintaining  a  ditch  upon  plaintiff's  land,  it  ap- 
pears that  the  land  was  of  little  value ;  that  the  injury  to  the  land 
was  not  real ;  that  the  damages  were  merely  nominal ;  that  defend- 
ant was  not  insolvent;  and  that  plaintiff's  remedy  at  law  was 
adequate,  then  the  court  did  not  err  in  refusing  to  grant  an  in- 
junction.17 Says  a  recent  case  applying  the  principle:  "Such 
mischief  as  appellant  is  likely  to  feel  from  the  insistence  of 
respondent  that  its  water  supply  be  kept  pure  and  clear  can  be 
obviated  at  an  expense  so  trifling  that  compliance  with  the  order 
of  the  court  cannot  be  called  a  hardship  or  work  a  loss  of  prop- 
erty rights.  On  the  other  hand,  any  obstruction  tending  to  the 
pollution  of  the  waters  of  Stewart  Creek  might  work  irreparable 
mischief,  reaching  far  beyond  the  inconvenience  of  the  land- 
owner. ' ' 18 

The  rule  as  to  the  balance  of  convenience,  or  comparative  hard- 
ship, is  more  favored  in  refusing  a  preliminary  injunction  than  a 
permanent  one ; 19  while,  on  the  other  hand,  it  is  equally  clear  that 
it  can  apply  only  in  equity  and  has  no  application  to  an  action  at 
law  for  damages.20 

15  Real  Del  Monte  M.  Co.  v.  Pond          is  City  of    Aberdeen  v.  Lytle  etc. 
M.  Co.,  23  Cal.  82,  7  Morr.  Min.  Rep.       Co.  (Wash.),  108  Pac.  945. 

452.     Citing     Hicks    v.    Compton,    18  19  California  etc.  Co.  v.  Enterprise 

Cal.  210;   3  Daniell's  Chancery  Prac-  etc.  Co.  (C.  C.  S.  D.  Cal.),  127  Fed. 

tice,     1860;      Adams'     Equity,     357;  741.     In  Contra  Costa  W.  Co.  v.  City 

Bruce   v.   Delaware   &   Hudson   Canal  of  Oakland,  165  Fed.  518,  it  was  said 

Co.,  19  Barb.  (N.  Y.)    371.  to  be  the  settled  rule  on  preliminary  in- 

16  Edwards  v.  Allouez  Co.,  38  Mich.  junctions.     See,    also,    Spring    Valley 
46,   31   Am.  Rep.   301,   7   Morr.   Min.  Co.  v.  San  Francisco,  165  Fed.  712. 
Rep.  577.  20  See     McCarthy   v.   Bunker     Hill 

17  Hoye  v.  Sweetman,  19  Nev.  376,  etc.    Co.    (Idaho),    164    Fed.    927,   92 
12  Pac.  504,  and  see  Mann  v.  Parker,  C.  C.  A.  259 ;  Wilhite  v.  Billings  etc. 
47   Or.   321,   86   Pac.   598;    Montecito  Co.,  39  Mont.  1,  101  Pac.  168. 

etc.   Co.  v.   Santa  Barbara,   144  Cal. 
578,  77  Pac.  1113. 


716   (3ded.)     Pt.  III.     THE  LAW  OF  PRIOR  APPROPRIATION.         §649 

(3d  ed.) 

§  649.  Same — Hardship  on  the  Public. — The  same  conflict  ap- 
pears where  the  hardship  is  on  the  public  instead  of  on  a  private 
party.  Here  again  Mr.  Pomeroy  states  that  the  better  rule  is 
that  an  injunction  should  not  be  refused  on  that  account.21 
Professor  Pomeroy  22  in  discussing  the  general  question  of  public 
policy  in  the  law  of  waters23  said:  "The  following  observations 
concerning  the  influence  which  the  'public  interests'  should  have 
upon  the  decisions  of  cases  involving  private  rights  are  of  weighty 
importance  in  this  community  as  well  as  in  Nevada  and  every 
other  State.  While  courts  most  certainly  have  a  legislative  func- 
tion, since  the  great  body  of  common  law  and  of  equity  has  been 
built  up  by  courts,  it  should  never  be  forgotten  that  courts  do 
not  rightfully  possess  the  power  of  legislating  from  motives  of 
mere  policy  and  expediency.  The  duty  of  courts  is  to  declare 
and  protect  private  rights  of  suitors  by  applying  or  extending 
some  established  principle  or  doctrine  to  new  conditions  of  facts. 
The  court  say:24  'Before  proceeding  to  an  investigation  of  the 
legal  questions  really  involved  in  the  case,  we  may  state,  once  for 
all,  that  the  fact  that  the  case  is  of  great  interest  to  the  public, 
whose  rights,  it  is  claimed,  "are  seriously  disturbed  by  the  deci- 
sion," is  a  consideration  which,  in  very  doubtful  cases,  may,  and 
perhaps  should,  have  some  weight  with  judicial  tribunals.  But 
that  the  interests  of  the  public  should  receive  a  more  favorable 
consideration  than  those  of  any  individual,  or  that  the  legal 
rights  of  the  humblest  person  in  the  State  should  be  sacrificed  to 
the  weal  of  the  many,  is  a  doctrine  which,  it  is  to  be  hoped,  will 
never  receive  sanction  from  the  tribunals  of  this  country.  The 
public  is  in  nothing  more  interested  than  in  scrupulously  protect- 
ing each  individual  citizen  in  every  right  guaranteed  to  him  by 
the  law,  and  in  sacrificing  none,  not  even  the  most  trivial,  to 
further  its  own  interests. '  }>25 

21  Pomeroy's     Equitable    Remedies,  tion  for  public  interest  asserted  by  an 
sec.   531,   but    citing    conflicting   au-  appropriator  claiming  that  no  law  of 
thorities.  waters   but   appropriation     should   be 

22  The   work   on   "Equity   Jurisdic-  recognized,  a  matter  fully  considered 
tion"  was  written  by  Professor  Pom-  elsewhere.     Supra,    sees.    112   et   seq., 
eroy,   and    after.    Ms     death   his   son  167  et  seq. 

added  the  two  volumes  on  "Equitable  24  Citing  Van   Sickle   v.   Haines,   7 

Remedies."  Nev.  249,  at  259,  14  Morr.  Min.  Rep. 

23  Specifically  in    connection    with       503. 

whether  the  court  could  deny  a  right  25  Pomeroy    on     Riparian    Rights, 

of  a  riparian  owner  out  of  considera-      sec.  119. 


§649  Ch.  27.     PROCEDURE.  (3ded.)717 

A  California  case  dealing  with  percolating  water  recently  said, 
per  Mr.  Justice  Henshaw: l  "We  do  not  set  forth  the  small  quan- 
tity of  the  land  so  irrigated  out  of  the  tract  of  forty  or  fifty 
square  miles  with  any  idea  that  because  the  use  was  little  and 
the  value  small  the  defendant  and  the  inhabitants  of  Corona 
which  it  supplied  should  in  any  way  receive  any  preference,  or 
should  for  such  reason  be  thought  to  have  any  superior  right. 
Such  an  argument  has  no  standing  in  a  court  of  law  and  is  dis- 
tinctly repudiated."2  Another  expression  is:3  "In  a  state  of 
society  the  rights  of  the  individual  must  to  some  extent  be  sacri- 
ficed to  the  rights  of  the  social  body;  but  this  does  not  warrant 
the  forcible  taking  of  property  from  a  man  of  small  means  to 
give  it  to  the  wealthy  man,  on  the  ground  that  the  public  will  be 
indirectly  advantaged  by  the  greater  activity  of  the  capitalist. 
Public  policy,  I  think,  is  more  concerned  in  the  protection  of 
individual  rights  than  in  the  profits  to  inure  to  indivduals  by  the 
invasion  of  those  rights. ' '  4 

On  the  other  hand,  there  is  the  great  volume  of  decisions  under 
the  "Colorado  doctrine"  that  out  of  public  policy  the  courts  may 
deny  the  rights  of  riparian  owners.5  So  there  are  cases  cited  in 
the  next  section  looking  to  hardship  upon  the  public  in  conflicts 
between  mining  and  agriculture.  And  there  are  cases  consider- 
ing comparative  hardship  upon  the  public  in  other  ways;  such  as 
those  in  a  later  section  denying  injunctions  against  distributers 
of  water  serving  the  public.  And  the  reader  is  acquainted  with  Mr. 
Roosevelt's  position  that  judges  should  decide  according  to  public 
interest. 

1  Newport  v.  Temescal  W.  Co.,  149  3  McCleery  v.   Highland  Boy   Gold 
Cal.  531,  87  Pac.  372,  6  L.  R.  A.,  N.       Min.  Co.  (C.  C.),  140  Fed.  951. 

S.,  1098.  4  See,    also,    Sullivan    v.    Jones     & 

2  See,  likewise,  Lux  v.  Haggin,  69  Laughlin   Steel   Co.,  208   Pa.   540,   57 
Cal.   255,   10  Pac.   674,  and   Miller  v.  Atl.  1065,  66  L.  R.  A.  712. 
Madera  Co.,  155  Cal.  59,  99  Pac.  502,  In  Pennington  v.  Brinsop  etc.  Co., 
22  L.  R.  A.,  N.  S.,  391,  refusing  to  L.  R.  5  Ch.  D.  769,  injunction  against 
reject  the   rights   of   riparian   owners  pollution  by  a   colliery   Was   granted, 
out  of  "public  policy."     But  see  Mr.  An   argument    based   on   the    ground 
Justice  Henshaw  in  San  Joaquin  Co.  that   a   large     force    of     colliery    em- 
v.  Fresno  Flume  Co.  (Cal.    1910),  158  ployees  will  be   thrown  out  of  work, 
Cal.  626,  112  Pac.  182;  and  Mr.  Jus-  considered,  but  held  not  &uch  balance 
tice  Shaw  in  Katz  v.  Walkinshaw,  141  of  inconvenience  as  to  be  sufficient  to 
Cal.  116,  99  Am.  St.  Rep.  35,  70  Pac.  justify  refusal  of  injunction. 

663,  74  Pac.  766,  64  L.  R.  A.  236,  ad-  5  Supra,  sees.   112   et  seq.,   167   et 

justing  the  law  of  percolating  water  on       seq. 
grounds  of  public  policy. 


718   (3d  ed.)     Pt.  III.     THE  LAW  OF  PRICE  APPROPRIATION.         §  650 
(3d  ed.) 

§  650.  Same — Conflict  Between  Mining  and  Agriculture. — 
The  question  has  been  much  mooted  in  the  West  in  conflicts  be- 
tween mining  interests  and  agricultural  interest  upon  streams 
because  of  mining  debris  or  tailings  polluting  the  streams,  and,  as 
such,  involves  two  large  classes  of  the  public,  rather  than  the 
parties  to  the  suit  alone ;  that  is,  the  community  of  laborers,  store- 
keepers and  others  dependent  upon  mining  for  their  occupation, 
and  the  community  lower  down  the  stream  dependent  upon  agri- 
culture.6 As  such,  these  cases  involve  the  question  of  balance  of 
hardship  on  the  public  as  well  as  upon  the  defendant  itself. 

The  following  recent  cases  illustrate  the  tendency  of  present 
decisions:7  "A  number  of  eminent  courts  support  the  conten- 
tion of  appellant  that  the  comparative  injury  to  the  parties  in 
granting  or  withholding  relief  must  also  be  considered.8  .... 
It  seems  to  us  that  to  withhold  relief  where  irreparable  injury 
is,  and  will  continue  to  be,  suffered  by  persons  whose  financial 
interests  are  small  in  comparison  to  those  who  wrong  them  is  in- 
consistent with  the  spirit  of  our  jurisprudence.  It  is  in  effect 
saying  to  the  wrongdoer,  'If  your  financial  interests  are  large 
enough  so  that  to  stop  you  will  cause  you  great  loss,  you  are  at 
liberty  to  invade  the  rights  of  your  smaller  and  less  fortunate 
neighbors.'  We  prefer  the  doctrine  adhered  to  by  Judge  Hawley 
in  his  dissenting  opinion  in  Mountain  Copper  Co.  v.  United 
States,9  and  by  Judge  Sawyer  in  Woodruff  v.  North  Bloomfield 
Gravel  Min.  Co.10  In  the  latter  case,  it  is  said :  '  Of  course  great 
interests  should  not  be  overthrown  on  trifling  or  frivolous 
grounds,  as  where  the  maxim  ' '  De  minimis  non  curat  lex ' '  is  applic- 
able; but  every  substantial,  material  right  of  person  or  property 
is  entitled  to  protection  against  all  the  world.  It  is  by  protecting 
the  most  humble  in  his  small  estate  against  the  encroachments  of 
large  capital  and  large  interests  that  the  poor  man  is  ultimately 
enabled  to  become  a  capitalist  himself.  If  the  smaller  interest 
must  yield  to  the  larger,  all  small  property  rights,  and  all  smaller 
and  less  important  enterprises,  industries,  and  pursuits  would 
sooner  or  later  be  absorbed  by  the  larger,  more  powerful  few ;  and 
their  development  to  a  condition  of  great  value  and  importance, 

6  In  this  regard  reference  is  made  8  Citing  McCarthy  v.  Bunker  Hill  & 
to  a  preceding  chapter  upon  pollution.  Sullivan  Min.  etc.  Co.,  164  Fed.  927. 

7  Arizona   Copper    Co.    v.    Gillespie  9  142  Fed.  625,  73  C.  C.  A.  621. 
(Ariz.),   100   Pac.   465.     Italics   ours.  10   (C.  C.),  18  Fed.  753,  8  Saw.  628. 


§650  Ch.  27.     PROCEDURE.  (3ded.)   719 

both  to  the  individual  and  the  public,  would  be  arrested  in  its 
incipiency. '  To  the  same  effect  are  the  remarks  of  Judge  Mar- 
shall in  McCleery  v.  Highland  Boy  Gold  Min.  Co.,11  wherein  he 
says:  'The  substantial  contention  of  the  defendant  is  that  it  is 
engaged  in  a  business  of  such  extent,  and  involving  such  a  large 
capital,  that  the  value  of  the  plaintiff's  rights  sought  to  be  pro- 
tected is  relatively  small,  and  that  therefore  an  injunction, 
destroying  the  defendant's  business,  would  inflict  a  much  greater 
injury  on  it  than  it  would  confer  benefit  upon  the  plaintiff.  Un- 
der such  circumstances,  it  is  asserted,  courts  of  equity  refuse  to 
protect  legal  rights  by  injunction  and  remit  the  injured  party  to 
the  partial  relief  to  be  obtained  in  actions  at  law.  Stated  in  an- 
other way,  the  claim  in  effect  is  that  one  wrongfully  invading  the 
legal  rights  of  his  neighbor  will  be  permitted  by  a  court  of  equity 
to  continue  the  wrong  indefinitely  on  condition  that  he  invest 
sufficient  capital  in  the  undertaking.  I  am  unable  to  accede  to 
this  statement  of  the  law.  If  correct,  the  property  of  the  poor  is 
held  by  uncertain  tenure,  and  the  constitutional  provisions  for- 
bidding the  taking  of  property  for  private  use  would  be  of  no 
avail.  As  a  substitute,  it  would  be  declared  that  private  property 
is  held  on  the  condition  that  it  may  be  taken  by  any  person  who 
can  make  a  more  profitable  use  of  it,  provided  that  such  person 
shall  be  answerable  in  damage  to  the  former  owner  for  his 
injury.'  '  In  a  recent  case  the  Idaho  court  refused  to  consider 
that  its  decree  enjoining  the  deposit  of  tailings  in  streams  would 
depopulate  Shoshone  County  and  cause  the  abandonment  of  all 
mining,12  saying:  "It  is  earnestly  urged  by  counsel  for  respond- 
ents that  if  this  court  should  hold  that  there  is  error  in  sustaining 
the  demurrers  to  the  complaints,  or  either  of  them,  it  would  re- 
sult in  'the  depopulation  of  Shoshone  County,  the  abandonment 
of  all  mining  and  milling  therein,  and  the  consequent  bankruptcy 
of  the  inhabitants  thereof.'  Deplorable  as  this  might  be,  if  true, 
it  furnishes  no  excuse  for  the  court  to  shirk  its  responsibilities  in 
disposing  of  the  question  before  us  on  the  merits.  The  law  is  no 
respecter  of  persons,  corporations  or  individuals,  and  in  its  crea- 
tion and  enforcement  reaches  out  and  protects  the  lone  settler  in 
his  rights,  let  them  be  ever  so  meager,  as  well  as  the  capitalists, 
the  corporation  or  individual  with  it  or  his  millions The 

11  (C.  C.),  140  Fed.  951.  12  Hill    v.    Standart    Min.    Co.,    12 

Idaho,  223,  85   Pac.  908. 


720   (3d  ed.)     Pt.  III.     THE  LAW  OF  PRICE  APPROPRIATION.         §  650 

law  does  not  measure  the  rights  of  litigants  by  the  amount  in- 
volved, nor  the  manner  in  which  it  may  affect  others  not  parties  to 
the  litigation."  Reference  may  be  further  made  to  the  "Debris 
Cases"  in  California,  already  considered.13 

On  the  other  hand,  this  Idaho  case  quotes  the  following  expres- 
sion from  McCarthy  v.  Bunker  Hill  etc.  Co.14  per  Judge  Beatty: 
"Without  detailing  the  reasons,  such  order  would  mean  the  clos- 
ing of  every  mine  and  mill,  of  every  shop,  store,  or  place  of  busi- 
ness in  the  Coeur  d'Alenes.  There  are  about  twelve  thousand 
people,  the  majority  of  whom  are  laboring  people  dependent  upon 
the  mines  for  their  livelihood ;  not  only  would  their  present  occu- 
pation cease,  but  all  these  people  must  remove  to  other  places, 
for  the  mines  constitute  the  sole  means  of  occupation,  and  when 
they  finally  close,  Wallace  and  Wardner,  Gem  and  Burke  and 
their  surrounding  mountains  will  again  become  the  abode  only 
of  silence  and  wild  fauna.  Any  court  must  hesitate  to  so  act  as 
to  bring  such  results."  The  case  last  quoted  refused  the  injunc- 
tion and  went  to  the  United  States  circuit  court  of  appeals,  where 
the  decision  refusing  the  injunction  was  affirmed,  without  preju- 
dice to  an  action  for  damages,  and  to  a  later  suit  for  injunction 
should  the  damage  suffered  by  plaintiff  sufficiently  increase  over 
that  so  far  actually  inflicted.  The  court  examines  the  decisions 
in  the  supreme  court  of  the  United  States  and  holds  the  grant- 
ing of  the  specific  remedy  by  injunction  to  be  discretionary  (the 
plaintiff  having  other  less  drastic  remedies),  and  that  this  discre- 
tion should  be  exercised  in  the  public  interest  rather  than  against 
it.  The  court  also  says:  "Furthermore,  where,  as  in  the  present 
case,  it  is  sought  to  enjoin  a  lawful  business,  the  court  should 
give  due  consideration  to  the  comparative  injury  which  will  re- 
sult from  the  granting  or  refusal  of  the  injunction  sought. ' ' 15 
There  is  also  a  much-discussed  Pennsylvania  case  (usually  dis- 
approved, however)  where  injunction  against  pollution  of  a 
stream  by  mine  refuse  was  refused,  partly,  at  least,  upon  the 
ground  of  hardship  upon  the  mining  public.16  Likewise  it  should 

13  Supra,     "Pollution,"    sees.     527,  259.     See,   also,   Oroville    v.    Indiana 
528.  etc.  Co.  (Cal.  1908),  165  Fed.  550. 

14  (Idaho),  147  Fed.  981  (a  case  of  16  Pennsylvania  Coal  Co.  v.  Sander- 
pollution  of   a   stream   by   mine   tail-  son,  113  Pa.  126,  57  Am.  St.  Rep.  445, 
ings).     For  the  same  case  on  appeal,  6    Atl.   453.     The   decision   has,   how- 
see  164  Fed.  927,  92  C.  C.  A.  259.  ever,   been    widely   disapproved.     See 

is  McCarthy  v.  Bunker  Hill  etc.  Co.       Young  v.  Bankier  etc.  Co.  (H.  of  L.), 
(Idaho),   164  Fed.  927,   92   C.  C.  A.   '    [1893]    App.   Cas.   691;    Roaring  etc. 


§650  Ch.  27.     PROCEDUEE.  (3ded.)   721 

be  noted  that  the  recent  Arizona  case  quoted  above  17  refused 
the  injunction  because  the  case  did  not  present  such  a  balance 
of  hardship  on  public  interest  upon  its  facts,  rather  than  that 
it  disputed  the  rule.18  It  appeared  (and  this  was  the  chief 
reason  for  denying  this  defense)  that  the  shut-down  of  the  great 
mines  involved  would  affect  only  one-third  of  the  mining  plant 
and  would  be  only  temporary,  because  impounding  works  for  the 
debris  might  be  built;  while  as  to  the  public,  the  injury  thereto 
from  the  injunction  was  not  clear,  and  the  injury  to  a  whole 
irrigation  community  from  a  refusal  was  patent.  The  court  thus 
did  not  deny  the  rule,  but  only  denied  that  the  case  was  such  as 
to  call  for  its  application. 

The  supreme  court  of  the  United  States  refused  a  writ  of  cer- 
tiorari  in  McCarthy  v.  Bunker  Hill  Co.,  supra;  and  in  the  case  of 
New  York  v.  Pine,  considered  in  the  next  section  below,  unequivo- 
cally gave  its  support  to  one  phase  of  the  doctrine  that  hardship 
upon  the  public  may  be  ground  for  refusal  of  equitable  relief. 

Public  policy,  public  interest  or  public  hardship  cannot  deny* 
to  any  man  his  rights  so  long  as  our  constitutions  protect  them 
(hence  the  conflict  which  has  waged  about  the  "Colorado  doc- 
trine" denying  riparian  rights);  if  public  interest  so  demands, 
the  law  of  eminent  domain,  after  hearing  and  compensation,  is 
open.  But  considering  now  specifically  the  remedy  by  injunction 
— an  equitable  remedy — the  writer's  understanding  of  the  matter 
as  a  general  principle  of  equity  is  that  extreme  balance  of  hard- 
ship upon  defendant  or  upon  third  persons,  or  especially  upon  the 
public,  is  properly  ground  for  refusal  of  an  injunction  if  clearly 
showing  that  the  injunction  will  work  more  injustice  than  justice ; 
remembering  that  the  remedy  is  an  extraordinary  one,  discretion- 
ary to  some  degree  with  the  chancellor;  the  refusal  not  barring 
the  right,  and  still  leaving  the  remedy  by  an  action  at  law  for 
damages  (or  by  assessment  of  damages  in  the  equity  suit). 

Go.   v.   Anthracite  etc.   Co.,   212    Pa.  if  Arizona  Copper  Co.  v.  Gillespie 

115,  61  Atl.  811;  Bowling  etc.  Co.  v.        (Ariz.),  100  Pac.  465. 

Ruffner,    117    Tenn.    180,    100   S.   W.  18  The   court   said:    "Counsel   press 

116,  9  L.  R.  A.,  N.  S.,  923,  10  Ann.  upon  us  the  proposition  that  we  should 
Cas.  581 ;  Straight  v.  Hover,  79  Ohio,  consider  the  comparative  damage  that 
263,  87  N.  E.  174,  22  L.  R.  A.,  N.  S.,  will  be  done  by  granting  or  withhold- 
276;    Teel  v.   Rio  Bravo   etc.   Co.,  47    '   ing  an  injunction  in  this  case,  alleg- 
Tex.   Civ.  App.   153,   104  S.  W.  420;  ing  that  the  effect  of  an  injunction 
Williams  v.  Haile  Min.  Co.  (S.  C.),  66  will  be  to  stop  the   operation  of  ex- 
S.  E.  117.  tensive   works,    deprive   thousands   of 

Water  Bights— 46 


722   (3d  ed.)     Pt.  III.     THE  LAW  OF  PRIOR  APPROPRIATION.         §  651 
(3d  ed.) 

§  651.  Same — Against  Public  Service  Companies. — Where  the 
public  interest  is  represented  by  a  public  service  company,  defend- 
ant, having  the  power  of  eminent  domain,  an  injunction  may  be 
refused  (upon  tender  of  damages)  because  of  the  public  interest  in 
having  the  operations  of  defendant  continued.  The  leading  water 
case  in  support  of  this  rule  is  the  decision  of  the  supreme  court 
of  the  United  States  in  New  York  v.  Pine,19  where,  after  the  city 
of  New  York  had  built  and  was  using  city  waterworks,  a  private 
owner  "upon  the  stream  below  two  years  later  sought  to  enjoin 
the  continued  diversion  of  the  water;  and  it  was  held  that  such 
a  long  delay  barred  the  action,  especially  as  the  city  had  ex- 
pended a  vast  sum,  the  work  had  been  completed,  and  the  popula- 
tion were  dependent  thereon;  that  a  court  of  equity,  in  which 
relief  was  sought,  would  not  place  a  man  in  a  position  where  he 
can  enforce  an  extortionate  demand,  having  waited  until  defend- 
ant was  tied  up  with  expensive  works,  and  public  necessity  had 
arisen.  In  a  recent  case  arising  in  California  out  of  the  break 
of  the  Imperial  Canal,  the  United  States  circuit  court  of  appeals 
ruled  that  a  landowner  whose  land  was  flooded  by  the  break  in 
the  canal  was  not  entitled  to  a  decree  against  the  distributing 
company  owning  the  canal  ''of  such  a  positive  and  sweeping 
character  that  it  would  practically  result  in  destroying  all  other 
interests  in  Imperial  Valley. ' '  20 

The  rule  is  now  well  established  in  California  in  percolating 
water  cases.21  It  is  stated  as  follows  by  Mr.  Justice  Shaw  in  a 

persons  of  employment,  and  cause  loss  Jacobsen  (Alaska),  146  Fed.  680,  77 

and  distress  to  other  thousands.     It  is  C.  C.  A.  106 ;  Boquillas  Co.  v.  Curtis, 

undoubtedly  true  that  a  court  should  213  U.  S.  339,  29  Sup.  Ct.  Rep.  493, 

exercise  great  care  and  caution  in  act-  53  L.  Ed.  822,  dictum;  Stock  v.  City 

ing  where  such  results  are  to  follow."  of  Hillsdale,  155  Mich.  375,  119  N.  W_ 

The  case  involved  a  conflict  of  inter-  435. 

est  between  the  mines  at  Clifton  and  21  Barton  v.  Riverside  W.  Co.,  155 

Morence  and  the  farmers  of  the  upper  Cal.  509,  101  Pac.  790,  23  L.  R.  A.f 

Gila   Valley,   the   farmers   having,   in  N.  S.,  331;  Montecito  W.  Co.  v.  Santa 

December,   1907,   before  Judge   S.  F.  Barbara,  144  Cal.  578,  77  Pac.  1113; 

Nave,   secured   an   injunction   against  Newport  v.  Temescal  W.  Co.,  149  Cal. 

the  deposit  of  tailing  in  the  San  Fran-  531,  87  Pac.  372,  6  L.  R.  A.,  N.  S.r 

cisco    River,    which    was    affirmed    on  1098;    Verdugo    W.    Co.    v.    Verdugo 

appeal  in  an  opinion  by  Mr.  Justice  (1908),  152  Cal.  655,  93  Pac.  1021. 
Campbell.  See,  also,  Miller  v.  Madera  Co.,  155 

19  185  U.  S.  93,  22  Sup.  Ct.  Rep.  Cal.  59,  99  Pae.  502,  22  L.  R.  A.,  N. 
592,  46  L.  Ed.  820.  S.,  391.     And  Miller  v.  Bay  Cities  W. 

20  The  Salton  Sea  Cases,  172  Fed.  Co.,  157  Cal.  256,  107  Pac.  115,  both 
820,  97  C.  C.  A.  242.     See,  also,  Me-  recognizing  the  principle,  but  holding 
Carthy  v.  Bunker  Hill  Co.,   164  Fed.  it  inapplicable  to  the  facts  presented. 
927,  92  C.  C.  A.  259;  Miocene  Co.  v.  See,  also,  Crescent  Canal  Co.  v.  Mont- 


§651 


Ch.  27.     PROCEDURE. 


(3ded.)   723 


percolating  water  case:  "Where  the  complainant  has  stood  by 
while  the  development  was  made  for  public  use,  and  has  suffered 
it  to  proceed  at  large  expense  to  successful  operation,  having 
reasonable  cause  to  believe  it  would  affect  his  own  water  supply, 
the  injunction  should  be  refused,  and  the  party  left  to  his  action 
for  such  damages  as  he  can  prove."22  A  very  recent  case  has 
unequivocally  established  this  doctrine  in  California  percolating 
water  cases,  and  is  quoted  at  some  length  in  that  connection 
hereafter.23 

In  California  this  has,  as  yet,  been  applied  only  in  percolat- 
ing water  cases,  the  cases  where  it  was  urged  against  a  riparian 
owner  on  a  stream  having  held  it  inapplicable  upon  the  facts  be- 
cause plaintiff  was  not  chargeable  with  any  unnecessary  delay  in 
bringing  suit  and  because  no  public  use  had  yet  actually  arisen.21 


gomery,  143  Cal.  252,  76  Pac.  1032, 
65  L.  R.  A.  940;  Logan  v.  Guichard 
(Cal.  1911) ,  114  Pac.  989 ;  Stevinson  v. 
San  Joaquin  etc.  Co.  (Cal.),  March 
20,  1911,  rehearing  granted  April  19, 
1911;  Burr  v.  Maclay  etc.  Co.  (Cal.), 
June  22,  1911. 

22  Katz  v.  Walkinshaw,  141  Cal. 
116,  99  Am.  St.  Rep.  35,  70  Pac.  663, 
74  Pac.  766,  64  L.  R.  A.  236.  Citing 
Fresno  etc.  Co.  v.  Southern  Pacific 
Co.,  135  Cal.  202,  67  Pac.  773;  South- 
ern Cal.  Ry.  Co.  v.  Slauson,  138  Cal. 
342,  94  Am.  St.  Rep.  58,  71  Pac.  3o2, 
which  were  railway  cases. 

In  a  later  California  percolating 
water  case,  where  an  injunction  was 
refused  (chiefly  upon  other  grounds, 
as  to  which  see  infra,  sec.  1051),  Mr. 
Justice  Henshaw  said:  "And,  finally, 
upon  this  proposition  it  may  be  said 
that  where  the  interests  of  the  public 
are  involved  and  the  court  can  arrive 
in  terms  of  money  at  the  loss  which 
plaintiff  has  sustained,  an  absolute  in- 
junction should  not  be  granted,  but 
an  injunction  conditional  merely  upon 
the  failure  of  the  defendant  to  make 
good  the  damage  which  results  from 
its  work.  Such  an  action,  if  success- 
ful, should  be  regarded  in  its  nature 
as  the  reverse  of  an  action  in  con- 
demnation. The  defendant  in  effect 
would  be  held  to  be  damaging  private 
property  without  just  compensation 
first  made  to  the  owner,  and  failing 
to  do  so,  should  be  enjoined  from 
further  damage."  Newport  v.  Tem- 
escal  W.  Co.,  149  Cal.  531,  87  Pac. 
372,  6  L.  R.  A.,  N.  S.,  1098. 


23  Barton  v.  Riverside  W.  Co.,  155 
Cal.  509,  101  Pac.  790,  23  L.  R.  A., 
N.  S.,  331,  quoted  infra,  sees.  1054, 
1171. 

24  "The  last  point  made  by  appel- 
lant is  in  the  nature  of  an  estoppel  in- 
voked against  the  plaintiff.     It  is  in- 
sisted   that    no    relief    by    injunction 
should  be  granted  the  plaintiff,  because 
it  is  claimed  that  plaintiff  knowingly 
stood  by  while  appellant,  as  a  public 
service   corporation  and  at   great   ex- 
pense   and    notoriously    and   publicly, 
constructed  a  large  and  extensive  sys- 
tem of  works  designed  for  the  public 
use,  and  brought  them  to  completion 
before  the  commencement  of  this  ac- 
tion; that  under  this  state  of  alleged 
facts   plaintiff  is  precluded   from   all 
right  to  equitable  relief,  and  its  only 
remedy  is  an  action  at  law  for  dam- 
ages.    In  support  of  this  position,  the 
principle  announced  in  that  respect  in 
Katz  v.  Walkinshaw,  141  Cal.  116,  99 
Am.  St.  Rep.  35,  70  Pac.  663,  74  Pac. 
766,  64  L.  R.  A.  236,  and  Newport  v. 
Temescal  Water  Co.,  149  Cal.  531,  87 
Pac.  371,  6  L.  R.  A.,  N.  S.,  1098,  is 
invoked.     The  principle  contended  for 
and  sustained  by  the  cases  cited  and 
others     is     unquestionably     correct." 
But  holds  the  rule  inapplicable  upon 
the  facts  presented  in  that  case,  viz., 
the    riparian    proprietor    for    a    long 
time  did  not  know  the  proposed  con- 
struction, or  the  likelihood  of  damage 
from  the   proposed   use,   and   brought 
suit  as  soon  as  he  knew  such  intention 
and  likelihood  of  damage  and  similar 
facts.     This  case  is  Miller  v.  Madera 


724  (3d  ed.)     Pt.  III.     THE  LAW  OF  PRIOR  APPROPRIATION. 


651 


In  New  York  v.  Pine,25  however,  it  was  applied  against  a  riparian 
owner,  and  there  are  several  recent  Nebraska  cases  in  which  it 
was  also  so  applied.1 

This  rule  is  based  primarily  upon  the  balance  of  convenience 
in  favor  of  the  public  represented  by  a  public  service  agency 
having  the  power  of  eminent  domain  (avoiding  multiplicity  of 
suits  by  reaching  the  same  result  in  the  injunction  suit  as  in  a 
condemnation  suit),2  and  secondarily  upon  laches  in  seeking  the 
equitable  remedy  after  great  expense  has  been  incurred.  Conse- 
quently where  no  public  necessity  had  yet  arisen,  nor  great  ex- 
pense incurred,  the  injunction  being  promptly  sought,  the  mere 
fact  that  defendant  has  the  power  of  eminent  domain  does  not 
make  the  rule  applicable.3  Likewise,  since  the  rule  does  not  bar 
plaintiff's  right,  but  only  the  equitable  remedy,  it  is  of  no  force 
in  a  claim  for  damages  (which  distinguishes  the  rule  from 
"estoppel,"  which  would  bar  the  right  entirely);4  and  if  the 
injunction  is  refused,  it  should  be  without  prejudice  to  an  action 
for  damages5  (and  probably  such  refusal  of  injunction  merely 


Co.,  155  Cal.  59,  99  Pac.  502,  22  L. 
R.  A.,  N.  S.,  391.  See,  also,  Verdugo 
Co.  v.  Verdugo,  152  Cal.  655,  93  Pac. 
1021;  Miller  v.  Bay  City  W.  Co.,  157 
Cal.  256,  107  Pac.  115;  Logan  v. 
Guichard  (Cal.  1911),  114  Pac.  989; 
Stevinson  v.  San  Joaquin  etc.  Co. 
(Cal.),  affirming  injunction  March  20, 
1911,  but  granting  rehearing  April  19, 
1911. 

25  Supra. 

l  Crawford  Co.  v.  Hathaway,  60 
Neb.  754,  84  N.  W.  271,  61  Neb.  317, 
85  N.  W.  303,  67  Neb.  325,  108  Am. 
St.  Rep.  647,  93  N.  W.  781,  60  L.  R. 
A.,  N.  S.,  889;  McCook  Co.  v.  Crewes, 
70  Neb.  115,  102  N.  W.  249;  Cline 
v.  Stock,  71  Neb.  70,  98  N.  W.  454, 
102  N.  W.  265.  These  Nebraska 
cases,  however,  carried  the  rule  too 
far,  we  believe.  The  rule  is  one  of 
equitable  defense  to  an  injunction, 
whereas  these  Nebraska  cases  turned 
it  around  and  allowed  the  wrongdoer 
to  become  the  plaintiff  and  enjoin 
acts  of  the  riparian  owner,  and  quiet 
title  against  the  riparian  owner  with- 
out having  condemned  his  riparian 
right.  There  is  a  difference  between 
denying  equitable  relief  on  the  one 
hand,  and  granting  affirmative  equita- 
ble relief  upon  the  other,  where  a  con- 


stitution prescribes  how  property  is  to 
be  taken  for  public  use.  There  are 
other  objections  to  these  Nebraska 
cases  above  noted.  Supra,  sec.  617,  et 
seq. 

2  The  supreme  court  of  the  United 
States  in  New   York  v.  Pine,  supra, 
expressly  says  that  if  public  necessity 
has  arisen,  the  rule  is  applicable  even 
if  defendant  does  not  have  the  power 
of     eminent    domain,    adopting    the 
broad     ground    of     balance    of    con- 
venience  considered   in   the    previous 
section;    but  it   is   usually   in   public 
service  cases  that  the  rule  is  invoked. 

3  Cases  cited  in  note  24,  just  above. 
In   a  recent   New  Jersey   case   this 

rule  was  recognized  and  discussed,  and 
it  was  said:  "But  the  circumstances 
must  be  exceptional,"  and  it  is  not 
intended  as  a  "general  exception  to 
the  ordinary  right  of  injunction  in  all 
cases  of  riparian  rights."  And  re- 
fused to  apply  it  in  the  case  at  bar, 
because  the  defendant  did  not  in  fact 
have  power  of  eminent  domain.  City 
of  Paterson  v.  East  Jersey  W.  Co.,  74 
N.  J.  Eq.  49,  70  Atl.  472. 

4  See  supra,  sees.  593,  594. 

5  McCarthy  v.  Bunker  Hill  Co.,  164 
Fed.  927,  92  C.  C.  A.  259. 


§  C52  Ch.  27.     PROCEDURE.  <.3d  ed.)  725 

for  want  of  equity  would  not  bar  a  subsequent  suit  for  damages 
even  if  not  expressed  to  be  without  prejudice)  ;  or  defendant 
may,  at  his  election,  have  the  damages  assessed  in  the  injunction 
suit.6  And  where  the  State  constitution  guarantees  a  jury  trial 
in  taking  property  for  public  use,7  the  defendant  has  a  right  to 
a  jury  to  assess  damages,  whatever  the  forum  may  be  in  which 
they  are  determined.8  And  furthermore,  all  these  cases  recog- 
nize that  if  defendant  refuses  to  pay  the  damages  after  they  are 
assessed,  the  injunction  will  then  lie  under  the  constitutional 
provision  that  property  cannot  be  taken  or  damaged  for  public 
use  without  compensation.9 

Although  the  rule  seems  in  some  way  a  little  hard  to  reconcile 
with  the  constitutional  provisions  guaranteeing  a  certain  pro- 
cedure before  taking  property  for  public  use  (in  that  these  cases 
arise  after  the  property  is  already  taken),  yet  the  decisions  have 
now  well  established  the  rule,  and  it  supports  our  conclusion  in 
the  previous  section  that  balance  of  convenience  favoring  the  pub- 
lic may  (a  matter  discretionary  with  the  chancellor)  properly  be 
a  ground  for  refusing  equitable  as  distinguished  from  legal  relief 

(3d  ed.) 

§  652.  Preliminary  Injunctions.  —  As  to  preliminary  injunc- 
tions, it  has  been  said  concerning  percolating  water:10  ''In  cases 
involving  any  class  of  rights  in  such  waters,  preliminary  injunc- 
tions must  be  granted,  if  at  all,  only  upon  the  clearest  showing 
that  there  is  imminent  danger  of  irreparable  and  substantial 
injury,  and  that  the  diversion  complained  of  is  the  real  cause." 
And  in  a  case  involving  surface  streams:  "Bights  to  the  use  of 
water  for  the  purposes  of  irrigation  are  of  that  supreme  import- 
ance to  all  entitled  to  take  water  from  a  common  source  of  sup- 
ply that  a  court  to  which  an  application  is  made  for  an  inter- 
locutory writ  affecting  such  rights  should  exercise  great  care  in 
granting  it  ex 


6  New  York  v.  Pine,  supra.  that  no  preliminary  injunction  should 

7  See  Cal.  Const.,  art.  1,  sec.  14.  be  granted  without  notice,  and   that 
0  XT       IT    i         T>-  temporary  restraining  orders  must  be 
»  New  York  v.  Pine,  supra.  returnable  on  an  order  to  show  cause 
»  E.  g.,  Cal.  Const.,  art.  1,  sec.  14.  within  ten  days,  etc.     Cal.  Code  Civ. 
10  Katz    v.    Walkinshaw,    141     Cal.  Proc.,  sec.  527,  as  amended  by  Stats. 

116,  99  Am.  St.  Rep.  35,  70  Pac.  663,  1911,  c.  42. 

74  Pac.  766,  64  L.  R.  A.  236.     In  1911  U  McLean    v.    Farmers'    etc.     Co. 

the  legislature  enacted  in  California  (1909),  44  Colo.  184,  98  Pac.  16. 


726  (3d  ed.)     Pt.  III.     THE  LAW  OF  PRIOR  APPROPRIATION.         §  653 

At  the  same  time,  it  rests  much  in  the  discretion  of  the  trial 
court,  and,  if  granted,  will  not  be  overthrown  on  appeal  merely 
because  of  conflict  of  evidence;  for  "The  granting  or  denial  of 
a  preliminary  injunction  does  not  amount  to  an  adjudication  of 
the  ultimate  rights  in  controversy.  It  merely  determines  that 
the  court,  balancing  the  respective  equities  of  the  parties,  con- 
cludes that,  pending  a  trial  on  the  merits,  the  defendant  should 
or  that  he  should  not  be  restrained  from  exercising  the  rights 
claimed  by  him.  When  the  cause  is  finally  tried,  it  may  be  found 
that  the  facts  require  a  decision  against  the  party  prevailing  on 
the  preliminary  application,"12  All  questions  decided  on  a 
motion  for  a  preliminary  injunction  are  open  for  review  on  the 
final  hearing,  but  the  prior  decision  should  be  adhered  to  unless 
additional  facts  appear  which  require  its  modification  or  reversal, 
or  it  clearly  appears  that  an  error  was  committed.13 

(3d  ed.) 

§  653.  Injunction  (Conclusion). — As  a  short  statement  of  the 
equitable  jurisdiction  to  enjoin,  we  quote  the  following  from  an 
opinion  by  Judge  Field  in  the  supreme  court  of  the  United 
States: 

"But  whether,  upon  a  petition  or  bill  asserting  that  his  rights 
have  been  invaded,  a  court  of  equity  will  interfere  to  restrain  the 
acts  of  the  party  complained  of,  will  depend  upon  the  character 
and  extent  of  the  injury  alleged;  whether  it  be  irremediable  in 
its  nature;  whether  an  action  at  law  would  afford  adequate 
remedy;  whether  the  parties  are  able  to  respond  for  the  damages 
resulting  from  the  injury,  and  other  considerations  which  ordi- 
narily govern  a  court  of  equity  in  the  exercise  of  its  preventive 
process  of  injunction."14 


D.     OTHER  EQUITABLE  REMEDIES. 
(3d  ed.) 

§  654.    Bills  to  Quiet  Title,  Settling  Rights,  and  Allied  Bills. — 
Many  suits  have  been  allowed  to  quiet  title  to  water-rights,  as  to 

12  Miller  v.  Madera  Co.  (1909),  155  ing  water,  before  a  final  determination 
Cal.  59,  99  Pac.  502.  could  be  had. 

13  Rodgers  v.  Pitt  (C.  C.  Nev.),  129  U  Atchison  v.   Peterson,   87   U.   S. 
Fed.  932.     An  instance  where  prelim-  507,  22  L.  Ed.  414,  1  Morr.  Min.  Rep. 
inary  injunction  lies  is  Hagerman  Co.  583.     A  somewhat  extensive  statutory 
v.  McMurray   (N.  M.),  113  Pac.  823,  regulation   of  injunctions   appears   in 
where  the  act   restrained  would  have  Wyo.    Stats.    1907,    p.    138,    sec.    21, 
ruined  plaintiff's  business  of  distribut-  et  alia. 


§654  Ch.  27.     PROCEDURE.  (3d  ed.)  727 

other  property.15  In  Katz  v.  Walkinshaw  16  it  was  said  that  a 
suit  will  lie  by  a  landowner  to  have  his  right  to  percolating  water 
declared  against  the  appropriators,  though  he  has  sunk  no  well, 
or  otherwise  made  use  of  it ;  and  that  was  made  matter  for  further 
consideration  when  the  case  later  actually  arose,  and  the  decision 
made  accordingly  and  the  rule  very  clearly  applied.17 

If  there  are  several  appropriators  or  other  claimants  on  the 
same  stream,  a  suit  may  be  brought  to  have  the  rights  of  all 
settled  and  determined.  In  such  a  case  all  parties  on  the  stream 
must  be  brought  into  court.18  (In  Arizona,  at  the  instance  of  the 
United  States  Reclamation  Service  a  friendly  suit  to  settle  rights  in 
the  Salt  River  Valley  involved  four  thousand  eight  hundred  water 
users  as  defendants.)  19  The  court  must  then  make  a  specific  finding 
of  the  amount  to  which  each  is  entitled,20  definite  in  time  and 
amount.21  Defendant  may  file  a  cross-bill.22 

"No  subject  is,  perhaps,  so  prolific  of  controversies  as  the  use 
of  water  by  different  claimants  for  irrigation  purposes,  and  a 
decree  concerning  it  should  be  as  certain  as  the  language  can 
make  it. "  ^  This  apportionment  may  be  in  time  as  well  as 
amount,  giving  each  the  use  of  the  whole  for  so  many  days  or 
hours  where  there  are  appropriations  originally  based  on  time; 
that  is,  "periodical  appropriations."24  In  making  the  appor- 
tionment, the  court  must  confine  itself  to  a  declaration  of  pre- 
existing rights,  not  the  creation  of  new  ones;  and  if  a  stream 
becomes,  from  natural  causes,  insufficient  for  all  claimants,  prior 
appropriators  must  be  given  their  full  amount  at  all  times  in  their 

is  E.  g.,  Peregoy  v.  Sellick,  79  Gal.  Co.  v.  Big  Indian  etc.  Co.,  146  Fed. 

568,  21  Pac.  966 ;  Senior  v.  Anderson,  166. 

130  Cal.  29,  62  Pac.  563;  Kimball  v.  23  Authors  v.  Bryant,  22  Nev.  242, 

Northern   etc.   Co.,   42    Colo.   412,   94  38  Pac.  439. 

Pac.  333.  24  Santa  Paula  Water  Co.  v.  Peralta, 

is  141  Cal.  116,  99  Am.  St.  Rep.  113  Cal.  38,  45  Pac.  168;  Rodgers  v. 

35,  70  Pac.   663,  74  Pac.  766,  64  L.  Pitt,  129  Fed.  932;  Union  etc.  Co.  v. 

R.  A.  236.  Dangberg,  81  Fed.  73;  Craig  v.  Craf- 
17  Infra,  sees.  1053,  1156.  ton  etc.  Co.,  141  Cal.  178,  74  Pac.  762. 
is  Supra,  sec.  625  et  seq.  In  general,  see,  also,  Frey  v.  Low- 
is  Hurley  v.  Abbott.  den,  70  Cal.  550,  11  Pac.  838;  Stein- 

20  Lakeside    etc.    Co.   v.    Crane,   80  berg  v.  Meyer,  130  Cal.  156,  62  Pae. 
Cal.  181,  22  Pac.  76.  483;  Bledsoe  v.  Decrow,  132  Cal.  312, 

21  Duckworth     v.    Watsonville    etc.  64   Pac.   397 ;    Rose    v.    Mesmer,    142 
Co.,  150  Cal.  520,  89  Pac.  338.     See  Cal.  322,  75  Pac.  905;   Suisun  v.  De 
Same  v.  Same,  158  Cal.  206,  110  Pac.  Frietas,  142  Cal.  350,  75  Pac.  1092; 
927.  Miller  v.  Thompson,  139  Cal.  643,  73 

22  See  Rickey  etc.  Co.  v.  Wood,  152  Pac.  583.     See  supra,  sec.  305,  regard- 
Fed.  22,  81  C.  C.  A.  218;  Ames  etc.  ing  periodical  appropriations. 


728  (Sded.)     Pt.  III.     THE  LAW  OF  PRIOR  APPROPRIATION.         §654 

proper  order  in  preference  to  later  claimants.25  In  Union  Min. 
Co.  v.  Dangberg l  Judge  Hawley,  nevertheless,  held  that  the 
deficiency  could  be  apportioned  among  appropriators  by  periods 
of  time  as  though  their  rights  were  correlative  as  at  common  law. 
This  is  a  modification  of  the  doctrine  of  priority,  whereby  the 
prior  appropriator  had  a  paramount  exclusive  right  at  all  times. 
It  was  followed  in  Anderson  v.  Bassman,2  and  represents  a  modifi- 
cation of  the  law  of  appropriation  upon  lines  already  considered.3 

An  action  to  quiet  title  to  a  water-right,  being  real  estate,  can- 
not be  brought  by  an  administrator.4  The  Utah  court  will  not 
quiet  title  to  Idaho  claims  on  a  stream,  though  it  flows  into 
Utah.5 

A  court  of  equity  has  jurisdiction  of  an  action  to  quiet  title  to 
an  irrigation  ditch  over  the  land  of  another  and  for  an  injunc- 
tion restraining  the  latter  from  interfering  with  the  ditch  and 
the  right  of  way  therefor,  and  the  court  should  administer  com- 
plete relief,  to  the  end  that  the  adverse  claim  of  defendant,  if 
found  to  be  invalid,  may  be  annulled,  and  that  plaintiff  may  be 
relieved  from  the  annoyance  of  the  claim  and  of  the  assertion 
thereof  in  the  future  by  defendant.6 

A  mutual  company  formed  to  distribute  water  exclusively  to  its 
stockholders  may  maintain  an  action  to  quiet  title  against  an 
upper  diverter.7 

A  decree  may  be  rendered  refusing  injunction,  but  declaring  a 
right  in  plaintiff.  This  cannot  be  in  rem,  except  by  statute,  but 
will  be  phrased  in  personam,  enjoining  defendant  from  claiming 
any  right  hostile  to  that  declared  in  plaintiff;  in  effect,  a  decree 
quieting  title.8 

In  settling  the  rights  of  carriers  the  court  may  examine  the 
requirements  of  their  consumers  and  apportion  the  supply  be- 
tween the  carriers  upon  the  basis  of  the  consumers'  requirements.9 

25  See  Riverside  etc.  Co.  v.  Sargent,  6  Cottonwood     D.     Co.     v.     Thorn 

112  Cal.  230,  44  Pac.  560.     See  supra,  (1909),  39  Mont.   115,  101  Pac.  825, 

sec.  302  et  seq. ;  infra,  sees.  751,  1343.  affirmed  in  104  Pac.  281. 

1  81  Fed.   73.  7  Arroyo  D.  Co.  v.  Baldwin  (1909), 

2  140  Fed.  14.  155  Cal.  280,  100  Pac.  874. 

3  Supra,  sec.  310  et  seq.  8  Burr  v.  Maclay  R.  Co.,  154  Cal. 
*  Travelers'   Ins.   Co.  v.   Childs,   25  428,   98    Pac.     260.     See   infra,   sees. 

Colo.  360,  54  Pac.  1020.  802,   831,    1053,   1138,    1156,   declara- 

5  Conant    v.    Deep    Creek     Co.,    23  tory  decree. 

Utah,  627,   90  Am.   St.  Rep.  721,   66  9  Montezuma   Canal    Co.   v.    Smith- 

Pac.  188;   Willey  v.  Decker,  11  Wyo.  ville  Canal  Co.   (Ariz.),  89  Pac.  512; 

496,   100  Am.   St.  Rep.   939,   73   Pac.  affirmed  in  218  U.  S.  371,  31  Sup.  Ct. 

210.     See  ante,   sec.  340  et  seq.,  in-  Rep.  67,  54  L.  Ed.  1074. 
terstate  streams. 


§655  Ch.27.     PROCEDURE.  (3ded.)   729 

Actual  present  damage  is  not  necessary  in  actions  to  quiet  title, 
settle  rights,  or  bills  quia  timet  generally.  As  was  said  in  Ore- 
gon: "It  may  be  regarded  as  well  settled  in  this  State  that  it  is 
only  necessary  to  maintenance  of  suits  of  this  character,  either 
that  it  appear  the  defendants  claim  adversely  to  the  moving  party, 
or,  if  not  asserting  a  hostile  claim,  that  those  made  defendants 
are  necessary  to  a  complete  determination  of  the  controversy."10 

An  irrigation  district  cannot  sue  to  determine  the  rights  of 
landowners  in  the  distribution  of  water.11 

Procedure  for  settling  rights  forms  an  important  part  of  the 
recent  legislation,  as  hereafter  set  forth.12  "It  is  manifest  from 
a  careful  examination  of  our  statutes  and  from  the  repeated 
decisions  of  our  courts  that  our  proceeding,  if  not  technically  one 
to  quiet  title,  is  quite  analogous  thereto."13  Such  a  special  pro- 
ceeding is  exclusive  of  technical  actions  to  quiet  title.14  But  the 
same  court  recently  also  held:15  "By  the  constitution,  the  dis- 
trict courts  of  this  State  are  courts  of  general  jurisdiction,  both- 
in  law  and  in  equity.  By  virtue  of  the  authority  thus  conferred, 
such  courts,  independent  of  statutes,  have  jurisdiction  in  matters 
pertaining  to  the  adjustment  of  water-rights  for  the  purposes  of 
irrigation."  16 

Proceedings  for  settling  rights  of  tenants  in  common  inter  se 
have  already  been  discussed.17 

(3d  ed.) 

§  655.  Specific  Performance  and  Allied  Matters. — A  parol  sale 
of  a  water-right  by  appropriation  receives  special  treatment,  as 
elsewhere  discussed.  Nevertheless  equity  will  give  specific  per- 
formance of  parol  agreements  where  part  performance  has  taken 
the  case  out  of  the  statute  of  frauds;  and  will  give  irrevocable 
effect  to  parol  licenses  that  were  intended  permanent  and  have 
been  executed.  This  matter  of  parol  sales  and  licenses  is  consid- 
ered in  another  place.18 

10  Whited  v.  Cavin  (Or.),  105  Pac.  15  Farmers'  etc.  Co.  v.  Rio  Grande 

396.  Supra,  sec.  642.  etc.  Co.,  37  Colo.  512,  86  Pac.  1042. 

u  Little  Walla  Walla  Irr.  Dist.  v.  16  Citing  Broadmoor  D.  Co.  v. 

Preston,  46  Or.  5,  78  Pac.  982.  Brookside  W.  &  I.  Co.  24  Colo  541, 

-  7  f       T>     4.  Vr  52  Pac-  792-     See  Kimball  v.  North- 

-  Infra,  Part  VI.  ern  Irf   ^  42  Colo   412>  Q4  Pac   333> 

is  Crippen  v.  X.  Y.  Z.  Ditch  Co.,  aiso  holding  that  action  to  quiet  title 

32  Colo.  447,  76  Pac.  797.  lies. 

14  Fluke  v.  Ford,  35  Colo.  112,  84          17  Supra,  sees.  320,  321. 
Pac.  469.  is  Supra,  sec.  555  et  seq. 


730  (3d  ed.)     Pt.  III.     THE  LAW  OF  PRIOR  APPROPRIATION.         §  656 

In  enforcing  agreements  in  equity  upon  the  principles  of  specific 
performance,  another  question  may  arise  when  the  agreement  is 
one  with  a  water-supply  company.  So  far  as  such  agreements 
are  primarily  for  service,  it  is  questionable  whether  specific  per- 
formance can  be  ordered  in  view  of  the  asserted  rule  that  equity 
cannot  order  specific  performance  of  contracts  for  continual 
service.  But  the  supply  contract  is  sometimes  regarded  as  con- 
veying an  incorporeal  hereditament,  a  water-right,  rather  than  a 
service  right,19  and  the  tendency  is  to  decree  specific  perform- 
ance.20 . 

E.     MISCELLANEOUS  REMEDIES. 

(3d  ed.) 

§  656.  Actions  at  Law. — Though  every  injury  to  a  water- 
right  is  not  a  case  for  an  injunction,  it  does  give  a  right  to  recover 
money  damages  at  law,  being  in  the  nature  of  a  nuisance.21  In  a 
suit  for  damages,  the  damage  must  not  be  alleged  as  for  the  value 
of  water  at  so  much  per  inch  or  gallon,  but  for  the  damage  to 
plaintiff's  undertaking,  consequent  to  the  loss  of  the  use  of  the 
water.22 

Ejectment  will  not  lie  for  a  watercourse,  for  "non  moratur, 
but  is  ever  flowing."23 

(3d  ed.) 

§  657.    Abatement  of  Nuisance  by  Act  of  Party — Use  of  Force. 

The  remedy  nearest  at  hand  is,  usually,  a  show  of  physical  force 
on  the  part  of  the  owner;  and  this  is  quite  proper  if  not  overdone. 
Reasonable  physical  force  may  always  be  used  to  put  trespassers 
off  one 's  property.  In  one  case  24  the  court  says  this  extends  to 
a  "molliter  manus  imposuit,"  which,  translated  from  the  Latin, 
may  be  taken,  "A  gentle  use  of  one's  fists."  In  the  following 
case  trespassers  entered  upon  another's  land  to  build  a  ditch  and 

19  Infra,   sec.    1315   et   seq.;    espe-          21  Parke  v.  Kilham,  8  Cal.  77,  68 
cially  sees.  1324,  1338.  Am.  Dec.  310,  4  Morr.  Min.  Rep.  522 ; 

20  Perrine  v.  San  Jacinto  etc.  Co.,  Tuolumne  etc.  Co.  v.  Chapman,  8  Cal. 
4  Cal.   App.   376,   88   Pac.   293    (die-  392,  11  Morr.  Min.  Rep.  34;  McCarthy 
turn}  ;  Hunt  v.  Jones,  149  Cal.  297,  86  v.   Gaston  etc.   Co.,  144  Cal.   542,   78 
Pac.  688 ;  Clyne  v.  Benicia  Water  Co.,  Pae.  7. 

100  Cah  310,  34  Pac   714      Cf     Stan-  ffl 

islaus  W.  Co.  v.  Bachman  (1907),  152        ,, 

Cal.   716,   93   Pac.   858,   15  L.  R.   A., 

N.  S.,  359;  Pomeroy's  Equitable  Rem-  ^  Challenor  v.  Thomas,  Yelv.  143; 

edies,  sec.  761.     Compare  Jersey  City       Shury  v.  Piggot,  Poph.  169. 

v.  Flynn,  74  N.  J.   Eq.   104,  70  Atl.  24  Mechanics'  Foundry  v.  Ryall,  75 

497;   Leavitt  v.  Lassen  Irr.  Co.,   157       Oal.  601,  17  Pac.  703. 

Cal.  82,  106  Pac.  404. 


§658  Ch.  27.     PROCEDURE.  (3ded.)   731 

interfere  with  water-rights  and  were  driven  off;  whereupon  they 
brought  suit.  The  court  says:  "One  of  the  grievances  of  which 
the  plaintiffs  complain  is  that  they  were  ejected  from  the  posses- 
sion of  certain  ground  occupied  by  them  for  the  purpose  of  con- 
structing a  dam  and  ditch.  The  object  was  to  divert  the  water 
away  from  the  defendants,  and  we  think  the  plaintiffs  have  no 
right  to  complain  of  the  means  adopted  to  defeat  this  object.  As 
against  the  defendants  the  diversion  would  have  been  illegal,  and 
we  regard  their  action  in  the  premises  as  a  proper  and  legitimate 
mode  of  averting  the  injurious  consequences."25 

One  may  go  upon  another's  land  to  remove  obstructions  placed 
there  without  being  held  liable  in  trespass,1  or  to  clean  out  or 
repair  the  ditch.2  The  subsequent  appropriators  may  require  the 
prior  one  to  keep  up  his  dam,  or  may  themselves  maintain  the 
dam  as  they  found  it  at  the  time  of  their  location.3  The  land- 
owner may  take  away  and  remove  material  brought  on  his  land 
by  a  ditch  owner  to  erect  a  saloon  beside  the  ditch.4 

In  a  recent  case  5  it  is  said :  ' '  It  is  clear  from  these  authorities 
that  one  who  is  in  possession  of  real  property  without  right  can- 
not maintain  an  action  of  trespass  on  his  person — assault  and 
battery — against  the  owner  of  the  property,  having  a  right  to 
its  possession,  or  against  those,  acting  at  his  instance  or  in  his 
behalf,  who  make  a  forcible  entry  thereon  to  dispossess  him, 
where  no  more  force  than  is  necessary  is  used  to  make  the  entry 
effective."  Adding  that  if  the  trespasser  is  armed,  it  may  (a 
question  of  fact)  be  reasonable  for  the  owner  to  enter  armed  to 
dispossess  him. 

(3d  ed.) 

§  658.  Crimes. — Even  aside  from  statute,  it  is  larceny  to  take 
water  out  of  a  receptacle  in  which  it  is  confined  and  reduced  to 
possession,  as  water  in  artificial  waterworks,  so  far  as  it  is 
private  property,  is  personal  property,  and  the  subject  of  larceny 
at  common  law.6  "One  may  put  the  case,  for  example,  where  I 

25  Butte  etc.  Co.  v.  Morgan,  19  Cal.  *  Whitmore  v.  Pleasant  Valley  etc. 

609,  at  616,  4  Morr.  Min.  Rep.  583.  Co.,  27  Utah,  284,  75  Pac.  748. 

See,  also,  McCarty  v.  Fremont,  23  Cal.  5  Walker   v.   Chanslor    (1908),   153 

196.  Cal.  118,  126  Am.  St.  Rep.  61,  94  Pae. 

1  Ennor  v.  Raine,  27  Nev.  178,  74  606,  17  L.  R.  A.,  N.  S.,  455. 

Pac.  1.  6  Supra,   sees.    35,   36;     Ferens    v. 

2  Carson  v.  Genter,  33  Or.  513,  52  O'Brien,  11  Q.  B.  D.  21.     See  Dolan 
Pac.  506,  43  L.  R.  A.  130.  v.  State  (Tex.  Civ.  App.),  129  S.  W. 

3  Lobdell   v.   Simpson,  2  Nev.   274,  840. 
90  Am.  Dec.  537. 


732  (3d  ed.)     Pt.  III.     THE  LAW  OF  PRIOR  APPROPRIATION.         §  658 

go  to  dip  water  from  a  river.  I  acquire  the  ownership  of  tho 
water  which  I  have  taken,  and  with  which  I  have  filled  my 
pitcher,  by  title  of  occupancy,  for  this  water,  being  a  thing  which 
belonged  to  no  person,  to  which  no  person  had  any  exclusive 
right  whatever,  I  have  been  able,  on  taking  it  into  my  possession, 
to  acquire  the  ownership  of  it  jure  occupationis.  That  is  why,  in 
case  on  returning  from  the  river,  I  have,  for  some  purpose,  left 
my  pitcher  standing  on  the  road,  with  the  intention  of  return- 
ing later  to  fetch  it  where  I  left  it,  i*,  in  the  meantime,  a  passer- 
by, having  found  my  pitcher,  proceeds  (to  save  himself  the 
trouble  of  going  to  the  river)  to  pour  into  his  pitcher  the  water 
that  was  in  mine,  he  has  committed  against  me  an  actual  theft 
of  that  water,  which  water  was  a  thing  of  which  I  was  actually 
the  proprietor,  and  of  which  I  retained  the  possession  through 
the  intention  I  had  of  returning  for  it  at  the  place  where  I  left 
it.  Note  that  the  flow  of  the  body  of  the  stream  must  not  be 
confounded  with  the  running  water  itself,  which  is  designated 
aqua  profluens."7  In  California  this  principle  is  enacted  in  the 
Penal  Code,8  providing  that  stealing  water  from  a  canal,  ditch, 
flume,  pipe,  reservoir  or  other  conduit  is  a  misdemeanor. 

Disturbing  any  gate  or  other  apparatus  for  the  .  control  or 
measurement  of  water,  without  authority  of  the  owner  or  man- 
ager and  with  intent  to  defraud  is  usually,  by  statute,  a  mis- 
demeanor.9 In  practice,  convictions  under  these  sections  are 
difficult  to  obtain.  The  Modesto  irrigation  district  in  California, 
during  the  year  1909,  brought  several  prosecutions  against  land- 
owners who  were  accused  by  the  officials  of  taking  water  out  of 
their  turn  when  ordered  not  to  do  so  by  the  ditch-tender  of  the 
district.  It  took  long  to  get  a  jury,  as  the  ranchers  seemed  to 
sympathize  with  the  defendants;  charges  of  unfairness  were 
made  against  the  officials;  and  the  verdicts  finally  resulted  in 
acquittals. 

Some  other  crimes  under  the  California  statutes  peculiar  to 
this  subject  are  poisoning  water  of  any  spring,  well  or  reser- 
voir.10 An-  example,  of  this  is  herding  a  band  of  sheep  daily 
to  a  stream  which  they  defile.11  Maintaining  appliances  injurious 

7  Pothier,  Droit  de  Propriete,  opp.  10  A    state's    prison     offense.     Cal. 
torn.  8,  p.  149.                                                 Pen.   Code,   sec.   347;    Stats.    1907,  c. 

8  Sees.    499    and     502.     See,     also,       492;  Stats.  1911,  c.  339. 

Neb.  Comp.  Stats.  1903,  sec.  6458.  n  People   v.  Borda,   105   Cal.   636, 

»  Cal.  Pen.  Code,  sees.  592,  607.  38  Pac.  1110. 


§658 


Ch.  27.     PROCEDURE. 


(3ded.)  733 


to  fish  is  a  misdemeanor.12  Wasting  artesian  well  water  is  a 
crime.13 

These  crimes  do  not  exclude  the  equitable  jurisdiction  to 
restrain  the  same  acts  as  nuisances  in  a  civil  suit.14 

Under  the  recent  water  codes  of  the  arid  States  there  are 
many  criminal  provisions  in  the  nature  of  police  regulations; 
such  as  diverting  water  without  a  permit  from  the  State  Engi- 
neer, waste  of  water,  interference  with  headgates  or  measuring 
devices,  or  obstruction  of  officials  in  their  work.15  A  common 
provision  is  that  "the  possession  or  use  of  water  when  the  same 
shall  have  been  lawfully  denied  by  the  water  commissioner  or 
other  competent  authority  shall  be  prima  facie  evidence  of  the 
guilt  of  the  person  using  it."  16  Pollution  of  water  to  the  danger 
of  health  is  also  usually  a  crime.17  In  Colorado,  for  a  public- 
service  water  company  to  exact  a  bonus  is  a  crime.18 


12  Pen.  Code,  629. 

13  Cal.  Stats.  1907,  p.  122,  sec.  5. 

14  People  v.   Truckee   Lumber  Co., 
116   Cal.   397,   58   Am.   St.   Rep.    183, 
48  Pac.  374,  39  L.  R.  A.  581;  Spring 
Valley  etc.  Works  v.  Fifield,  136  Cal. 
14,  68  Pac.  108;   Arizona  Copper  Co. 
v.  Gillespie    (Ariz.),   100  Pac.  465. 

15  For  example: 

Colorado—  Rev.  Stats.  1908,  sees. 
1817,  3178,  3179,  3239,  3240,  3495  et 
seq.,  3497  et  seq.,  and  the  following 
sections  of  the  Revised  Statutes  of 
1908:  Water  commissioner  (section 
1723)  ;  Failure  to  cover  ditch  (section 
3243) ;  Polluting  stream  (section 
1817)  ;  Allowing  water  to  waste  (sec- 
tion 3240)  ;  Trees  which  conserve  the 
snow  (section  2626). 

Idaho.— Stats.  1903,  p.  223,  sec.  26; 
Stats.  1907,  p.  237. 

Nebraska. — Comp.  Laws  1903,  sees. 
6407,  6443,  6445,  6458. 

Nevada. — Comp.  Laws  1900,  sees. 
430-434,  4879,  4881;  Stats.  1903,  p. 
214;  Stats.  1903,  p.  18,  sec.  20; 
Stats.  1907,  p.  30,  sees.  16,  26,  27,  30; 
Stats.  1907,  p.  104;  Stats.  1909,  p. 
48.  Failure  of  claimant  to  file  state- 
ment for  adjudication  of  rights  is  de- 
clared a  crime.  Stats.  1907,  p.  30, 
sec.  16. 

New  Mexico.— Stats.  1907,  p.  71, 
sees.  46-48,  50,  67. 


North  Dakota. — Stats.  1905,  p.  274, 
sees.  28,  43,  52-54,  57. 

Oregon. — Laws  1909,  c.  216,  sees. 
43-45,  66. 

South  Dakota.— Stats.  1905,  p.  201, 
sees.  28,  49,  54;  Stats.  1907,  c.  180. 

Utah.— Stats.  1907,  p.  57,  sees.  55, 
64. 

Washington. — Pierce's  Code,  sees. 
1908,  5834,  5837,  5872,  5901;  Stats. 

1907,  p.  285.     It  is  a  crime  in  Wash- 
ington   to    cause    any    aperture    in    a 
structure   erected    to   conduct   waters 
for    agricultural    purposes.     State   v. 
Tiffany  (Wash.),  87  Pac.  932. 

Wyoming. — R«v.  Stats.,  sees.  917, 
918,  924  et  seq.,  971;  Stats.  1901, 
c.  86,  pp.  95,  99;  Stats.  1907,  p.  138, 
sees.  13-15;  Stats.  1907,  c.  86. 

This  list  is  not  complete.  See  stat- 
utes infra,  Part  VIII. 

16  E.     g.,     Colorado. — Rev.     Stats. 

1908,  sec.   3497;    Laws  1901,   p.   196. 
Oregon.— Laws   1909,  c.  216,  sec.   66. 
Wyoming. — Laws    1901,   c.    66.     Cali- 
fornia.— Laws  1911,  c.  406,  sec.  6. 

In  Lindsley  v.  Natural  Carbonic  etc. 
Co.  (1911),  31  U.  S.  Sup.  Ct.  Rep. 
337,  such  clause  is  held  constitutional. 

17  E.  g.,  Colo.  Rev.  Stats.  1908,  sec. 
1817. 

18  Colo.  Stats,  infra,  see.  1433.     See 
Northern  Irr.  Co.  v.  Richards,  22  Colo. 
456,  45  Pac.  423,  and  cases  cited  infra, 
sec.  1280. 


§§  659-665.     (Blank  numbers.) 


CHAPTER  28. 
INTRODUCTORY. 

§  666.  Appropriation  and  the  common  law. 

§  667.  Ancient  possession — The  maxim  "Aqua  currit." 

§  668.  Prior  possession  even  if  not  ancient. 

§  669.  Priority  of  appropriation  enforced. 

§  670.  Priority  finally  displaced  by  equality. 

§  671.  Same. 

§  672.  Same. 

§  673.  Kiparian  rights  under  the  California  doctrine. 

§  674.  Conclusion. 

§8  675-683.     (Blank  numbers.) 

(3d  ed.) 

§  666.  Appropriation  and  the  Common  Law. — Up  to  recent 
times,  the  English  decisions  were  devoted  consistently  to  pro- 
tection of  long-standing  enjoyment  of  the  water  of  a  stream. 
The  earliest  cases  usually  presented  a  condition  where  one  had 
from  time  immemorial  used  the  water  for  a  mill  or  for  watering 
cattle,  or  for  irrigating  a  meadow  in  time  of  drought,1  and  another 
wholly  stopped  the  stream  or  diverted  it  elsewhere  and  left 
plaintiff's  mill  or  land  dry  and  helpless,  whereupon  the  courts 
acted  to  protect  the  former's  ancient  enjoyment.  In  the  Year 
Books  several  such  cases  appear,2  giving  only  the  results  of  the 
assizes,  however  (that  the  diversion  from  plaintiff  was  allowed 
or  denied,  being  usually  denied),  but  without  any  discussion. 

1  E.  g.,  Year  Book  XII,  Edward  III  irrigate      [adaquare]      the     aforesaid 

(A.    D.    1331,    Horwood's    edition,   p.  meadow  in  time  of  drought,  and  do 

464),  where  James  diverted  the  course  other  needful  things  therewith,"  and 

of   a   certain   stream    of   water   from  that   after  the  diversion  he    specifies 

T.,   the   latter   complains    that   water  heavy    damage,    and    it   was     ordered 

was  wont  to  flow  from  a  spring  to  his  "that  the  said  nuisance  be  abated  and 

meadow    "with    which   water    he    was  that  the  said  water  be  turned  into  its 

wont     to    water    his     cattle,    namely,  former  course  at  the  expense  of  the 

horses,  sheep   ?nd   cows,   and   also   to  said  .T." 

fish  therein  and  brew  therewith,  and  2  See  Woolrych  on  Waters,  p.  177. 

(735) 


736  (3d  ed.)    Pt.  IV.    THE  COMMON  LAW  OF  RIPARIAN  RIGHTS.    §  667 
(3d  ed.) 

§  667.  Ancient  Possession — The  Maxim  "Aqua  Currit." — This 
principle  of  protecting  ancient  enjoyment  is  expressly  taken  as 
the  ground  of  decision  in  the  earliest  cases  containing  actual  dis- 
cussion. These  cases  representing  the  second  stage  of  the  common 
law,  discussed  the  matter  from  the  view  of  proper  pleading  by 
the  plaintiff  in  such  a  case.  The  plaintiff,  relying  upon  an 
immemorial  custom,  usually  declared,  in  the  words  of  pleading 
a  custom,  that  the  water  "currere  solebat"  to  his  mill  or  land, 
and  that  he  had  made  use  of  it  there  from  time  out  of  mind. 
Such  pleading  was  upheld  because  it  properly  alleged  an  ancient 
custom.  The  most  important  of  these  is  Shury  v.  Piggott, 
decided  in  1625.  The  case  seems  to  have  excited  a  good  deal 
of  attention  at  the  time,  being  given  in  six  different  reports,3 
and  has  been  said  to  have  discussed  collaterally  many  things 
which  were  not  necessary  to  the  decision.4  Lord  Blackburn 
declares  the  stream  in  question  appears  to  have  been  in  reality 
an  artificial  one;  though  the  maxim,  "Aqua  currit  et  debet  currere 
ut  currere  solebat,"  as  a  rule  of  natural  streams,  probably  rests 
upon  this  case.  The  fact  that  it  was  an  artificial  stream  shows  that 
this  maxim  really  arose  as  a  statement  that  the  right  to  running 
water  rests  on  prescription ;  and  there  is  enough  in  the  reports  of 
other  cases  to  show  that  such  is  the  real  origin  of  the  maxim.  The 
point  is  worth  following  up  a  little. 

The  case  discussed  the  matter  from  the  view  of  formal  pleading, 
as  was  usually  the  way  cases  were  treated  at  the  time.  The  plaintiff 
declared,  in  the  words  of  pleading  on  ancient  "custom,"  that  the 
water  "currere  solebat  .et  consuevit''  to  his  land,  and  one  of  the 
judges  rested  his  decision  on  the  ground  that,  as  he  said,  "  'consue- 
vit' is  a  good  word  for  a  custom."  5  That  the  words  of  the  maxim 
arose  from  this  idea  of  resting  the  right  to  watercourses  upon  pre- 
scription or  custom  from  time  out  of  mind,  appears  in  numerous 
other  of  the  older  authorities  succeeding  this  case.  In  one  it  was 
held,  "By  reason  of  the  words  'consuevit  et  debuit,'  it  must  be  in- 
tended that  a  prescription  was  given  in  evidence. "  °  In  another 

3  Palm.   444;    Poph.   169,   81   Eng.  v.   Piggott,   said.   "Ici   sont   sufficient 
Reprint,  1163 ;  3  Buls.  339 ;  Noy,  84 ;  parols  d'expresser  un  prescription,  de 
Latch,   153 ;   W.  Jones,  145,  81  Eng.  temps   d'ont,   etc.,  consuevit   currere," 
Reprint,  280.  adding  that,  "serra  entend  ancient." 

4  Lord  Blackburn  in  Dalton  v.  An-  6  Rosewell   v.    Prior,    1   Ld.    Raym. 
gns,  6  App.  Cas.  825.  392,  91  Eng.  Reprint,  1160,  a  case  of 

5  As  reported  in  Palm.  444,  81  Eng.  lights. 
Reprint,  1163,  Doderidge,  J.,  in  Shury 


§667  Ch.28.     INTRODUCTORY.  (3ded.)  737 

it  was  said.  "Currere  consuevit  had  been  held  well  enough  in  case 
of  a  watercourse,  because  that  must  be  time  immemorial."7  In 
another,  "If  I  have  a  right  from  usage  as  currere  solebat,  I  have 
the  right  in  such  manner  as  the  usage  has  been. ' '  8  There  is  another 
instructive  case  reported  in  several  reports.9  In  this  case  plaintiff 
declared,  among  other  words,  that  the  water  "currere  consuevit  et 
debuit  to  a  mill  of  the  plaintiff,"10  which  was  held  a  sufficient 
pleading  both  below  and  on  appeal.  The  watercourse  was  an  artifi- 
cial oner11  In  support  of  the  pleading,  plaintiff's  counsel  (Pollex- 
fen,  at  one  time  Chief  Justice)  argued,  among  other  things,  that 
"The  words  'ab  antiquo  et  solito  cursu'  amount  to  as  much  as  if  it 
had  been  said  de  jure  currere  debuisset  et  consuevit,"  and  the  report 
says  :12  "  The  judgment  was  affirmed,  but  Holt,  Chief  Justice,  said, 
that  if  the  cause  had  been  tried  before  him,  the  plaintiff  should 
have  proved  his  mill  to  be  an  ancient  mill,  otherwise  he  should 
have  been  nonsuit,"  showing  that  the  words  "consuevit  et  debuit" 
were  taken  by  Holt  as-  referring  to  prescription.  In  another  report 
of  the  same  appeal 13  plaintiff 's  counsel  speaks  of  certain  cases  as 
"those  cases  are  wherein  the  plaintiff  declared  that  the  water 
currere  consuevit  et  debuisset  to  the  plaintiff's  mill  time  out  of 
mind ;  which  words  are  of  the  same  significance  as  if  he  had  showed 

it  to  be  an  ancient  mill The  word  'solet'  implies  antiquity. 

....  and  it  was  the  opinion  of  a  learned  judge  14  that  the  words 
4 currere  consuevit  et  solebat'  did  supply  a  prescription  or  custom." 
The  report  says:  "The  word  'solet'  implies  antiquity  and  will 
amount  to  a  prescription,"  adding  the  expression  of  Holt,  C.  J., 
given  above,  to  this  effect,  whereby  he  must  have  meant  that,  since 
the  pleading  was  based  on  prescription,  it  could  only  be  sup- 
ported on  the  trial  by  proof  that  the  use  was  in  fact  ancient  as  the 

7  Powell,  J.,  in  Tenant  v.  Goldwin,  but  the  report  of  it  on  appeal  appears 
2  Ld.  Raym.  1089,  at  1094,  92  Eng.  in  four  different   reports,  viz.:    Skin. 
Reprint,  222.  175,  90  Eng.  Reprint,  81;  Garth.  85, 

8  Brown   v.   Best,   1   Wils.   174,   95  90   Eng.   Reprint,   653;    87   Eng.   Re- 
Eng.  Reprint,  557.  print,  30,  3  Mod.  48,  90  Eng.  Reprint, 

9  Palmer  v.  Keblethwaite,  1  Shew.  901,   and   Holt,  5.     See,   also,   3   Lev. 
64,   89   Eng.   Reprint,   451;    Skin.   65,  133,  83  Eng.  Reprint,  615. 

90    Eng     Reprint,    31.     In   Mason    v.  .  10  1  Show.  64,  89  Eng.  Reprint,  451. 

Hill,   5    Barn.    &    Adol.    1,    110    Eng.  "  Garth.  85,  90  Eng.  Reprint,  31. 

Reprint,  692,  Lord  Denman  speaks  of  12  Garth.  85,  90  Eng.  Reprint,  31. 

these   two   reports   of    the   case,   and  13  3  Mod.  48,  90  Eng.  Reprint,  301. 

says :    "The   final    result    of   the   case  *4  Citing  Doderidge,  J.,  in  Shury  v. 

does  not  appear  in  the  books,  and  the  Piggott,  Poph.  171,  81  Eng.  Reprint, 

roll  has  been  searched  for  it  in  vain,"  1163,  above  quoted. 
Water  Rights — 47 


738   (3d  ed.)     Pt.  IV.    THE  COMMON  LAW  OF  RIPAEIAN  RIGHTS.     §  668 

words  "currere  consuevit,"  "debuit"  or  "solebat"  must  be  taken 
as  having  alleged.15 

These  cases  show  that  the  common  law  of  watercourses  was  at  one 
time  based  on  an  analogy  to  prescription  or  ancient  custom,  and 
that  the  maxim,  "Aqua  currit  et  debet  currere  ut  currere  solebat" 
is  merely  a  survival  of  this  stage  of  the  law ;  a  stage  now,  of  course, 
long  discarded,  though  the  maxim  has  survived.18 


(3d  ed.) 

§  668.  Prior  Possession  Even  if  not  Ancient. — As  part  of  this 
second  stage  of  the  English  law  a  modification  of  the  foregoing  ap- 
peared in  some  of  the  cases  just  considered.  From  regarding  the 
right  as  resting  upon  ancient  enjoyment,  it  was  questioned  in  some 
of  these  cases  whether  the  enjoyment  had  to  be  ancient,  and  whether 
actual  possession,  however  short,  was  not  alone  enough  against  one 


15  A  declaration  that  plaintiff  had 
a  mill  "ab  antiquo"  and  defendant  did 
certain  acts   "per  quod   cursus  aquae 
praedict  coarctutus  est,"  and  the  dec- 
laration   was    held    good.     Russell   v. 
Handford,   1  Leon.  273,  74  Eng.  Re- 
print, 248   (about  A.  D.  1650).     "Ad 
malendirtum  illud  currere   consuevit." 
Diverted,  prevented  milling.    See  Vin- 
er's   Abridgment,    "Watercourses,"   B, 
see.  2.     In  another  it  was  held  a  good 
pleading     to     allege     "quod     quidam 
fluxus  aquae  currere  consuevit  et  de- 
buit    \tsque     ad     quendam     fontem." 
Prickman  v.  Tripp,  Skin.  389,  90  Eng. 
Reprint,    173.     A    man's    right    to    a 
watercourse    for    a    mill    regarded    as 
resting      on      prescription.     Luttrel's 
Case,  4  Coke,   86a,   76   Eng.   Reprint, 
1065;    Russell   v.   Handford,    1   Leon. 
273,  74  Eng.  Reprint,  248;  The  King  v. 
Directors  of  Bristol  Co.,  12  East,  429, 
104  Eng.  Reprint,  167.     Manle,  J.,  in 
Smith  v.  Kenrick   (1849),  7  Com.  B. 
546;    Acton  v.   Blundell,   12   Mees.   & 
W.  324. 

16  "We  may  consider,  therefore,  that 
this  proposition  is  indisputable;  that 
the  right  of  the  proprietor  to  the  en- 
joyment of  a  watercourse  on  the  sur- 
face is  a  natural  right,  and   not  ac- 
quired  by   occupation   of   the   stream 
itself,      or     presumed     grant."     Lord 
Wensleydale,    in    Chasemore    v.    Rich- 
ards, 7  H.  L.  Cas.  349,  11  Eng.  Re- 
print,   140.     See,    also,     Dickinson    v. 
Canal  Co.,  7  Ex.  299;   Magistrates  V. 


Elphinstone,  3  Kames  Dec.  (Scotch) 
332,  saying,  "This  right  he  has  from 
the  law  of  nature,  without  the  aid  of 
prescription."  See,  also,  Countess  of 
Rutland  v.  Bowler,  Palm.  290,  81  Eng. 
Reprint,  1087;  Prickman  v.  Tripp, 
Skin.  389;  Comb.  231,  90  Eng.  Re- 
print, 173,  447;  Acton  v.  Blundell,  12 
Mees.  &  W.  324;  Cox  Y.  Matthews,  1 
Vent.  237,  86  Eng.  Reprint,  159;  The 
King  v.  Directors  of  Bristol  etc.  Co., 
12  East,  429,  104  Eng.  Reprint,  167. 

The  idea  nevertheless  found  expres- 
sion to  a  comparatively  late  date.  In 
The  King  v.  Directors  of  Bristol  Dock 
Co.,  12  East,  429,  104  Eng.  Reprint, 
167,  Lord  Ellenborough  said  the  in- 
stances of  actions  maintained  against 
those  who  disturbed  plaintiff  in  enjoy- 
ment of  the  water  of  a  river  "were 
cases  where  the  owners  of  the  prop- 
erty, by  long  enjoyment,  had  acquired 
special  rights  to  the  use  of  the  water 
in  its  natural  state."  It  was  also  sug- 
gested by  Tyndall,  C.  J.,  in  Acton 
v.  Blundell  (1843),  12  Mees.  &  W. 
324,  and  in  another  case  it  was  said: 
"As  to  surface  flows  [watercourses], 
parties  acquire  rights  to  them  because 
there  is  the  acquiescence  of  everybody 
who  has  any  interest  in  the  matter." 
Maule,  J.,  in  Smith  v.  Kenrick  (1849), 
7  Com.  B.  546.  Both  of  these  last 
are  expressly  disapproved  in  Chase- 
more  v.  Richards,  supra. 

See,  also,  infra,  sec.  1434. 


§  669  Ch.  28.     INTEODUCTORY.  (3d  ed.)  739 

who  had  never  before  possessed  it.  The  principle  applied  was  that 
possession  is  sufficient  title  against  a  mere  wrongdoer  showing  no 
better  right  (the  better  right  being  by  prescription).  In  a  case 
above  referred  to,17  where  the  declaration  was  treated  as  stating 
a  prescription,  counsel  (Pollexfen)  argued  also  that  "This  action 
is  of  the  same  nature  with  an  action  of  trespass,  and  therefore  good 
upon  the  possession  only,"  even  if  not  ancient  (but  then  proceeding 
to  show  that  the  words  in  the  declaration  also  amounted  to  saying 
it  was  ancient),  and  one  of  the  judges  (Hoyle)  said:  "Where  the 
declaration  is  upon  the  possession  against  a  wrongdoer,  there  we 
need  not  say  that  it  was  time  out  of  mind."  Numerous  cases  were 
rested  upon  this  idea.18 

The  principle  is  an  underlying  one  still  true  to-day;  but  the 
importance  of  these  early  cases  is  in  that  they  allowed  it  to  be  the 
controlling  principle  of  rights  in  watercourses,  whereas  the  con- 
trolling principle  at  common  law  is  now  that  a  title  to  the  flow  and 
use  of  the  stream  is  an  incident  to  the  land  by  which  it  flows,  and  the 
consideration  of  possession  without  title  has  been  entirely  subordi- 
nated.19 

(3d  «d.) 

§  669.  Priority  of  Appropriation  Enforced. — The  third  stage 
of  the  English  decisions  presents  the  first  real  attempt  to  consider 
the  matter  on  principle  about  the  beginning  of  the  last  century. 
The  desire  still  was  to  protect  the  long-standing  enjoyment;  but 
now  treating  the  matter  aside  from  formal  pleading,  the  judges 
went  to  the  civil  law  for  their  principles,  as  later  herein  set  forth. 
Still  wishing  to  protect  the  old  enjoyment,  they  understood  these 

17  Palmer  v.  Heblethwait,  1  Show.  watercourse  was  upheld  on  this  ground 
64,  89  Eng.  Reprint,  451.  of    possession    against   a   wrongdoer, 

18  It  is  in  part  taken  as  the  ground  without  alleging  title.     Glyn  v.  Nich- 
of  the  judgment  of  Whitlock,  J.,  in  ols,  Comberback,  43,  90  Eng.  Reprint, 
Shury   v.    Piggott,   supra.     See,    also,  333,   2   Show.   507,   89   Eng.   Reprint, 
Aldred's   Case,   9    Coke,   86,   77    Eng.  1069.     In    another,   "Action   for   dis- 
Reprint,   816;    Moore  v.   Browne    (15  turbing  a  watercourse,  with  a  currere 
Eliz.),  3  Dyer,  319,  73  Eng.  Reprint,  debuit   only,    and    says    not    'solebat.' 
723.     And  it  was  actually  decided  in  Quaere,  if  not  good."     Jackson  v.  Sal- 
some  cases  that  the  use  need  not  be  way,   1   Show.  350,   89   Eng.   Reprint, 
ancient    to    entitle     it    to     protection  142.     In   S.    C.,    Skin.    316,   90    Eng. 
against   one    not   himself    claiming   a  Reprint,  619,  held  good,  as  his  posses- 
prescription ;  e.  g.,  Sands  v.  Trefuses,  sion   was   sufficient.     That    plaintiff's 
Cro.  Car.  575,  79  Eng.  Reprint,  1094,  mill  need  not  be  an  ancient  one  was 
holding  that  it  need  not  be  an  ancient  also  held  upon  this  ground  in  Cox  v. 
mill.     Possession  is  enough  against  a  Matthews,  1  Vent.   237,  86  Eng.  Re- 
tort-feasor.     (15  Charles    I.)     In  an-  print,  159,  3  Keble,  133. 

other   case    trespass   for    diverting   a          19  Supra,  sees.  83,  246,  628. 


740  (3d  ed.)    Pt.  IV.    THE  COMMON  LAW  OF  RIPARIAN  RIGHTS.    §  670 

civil-law  principles  as  affirming  the  doctrine  of  prior  appropriation, 
and  protected  the  long-standing  use  against  the  innovation  of  a 
recent  diversion,  on  the  ground  of  priority  of  use.  One  of  the  chief 
cases  to  this  effect  is  Liggins  v.  Inge,20  referring  to  the  civil  law, 
and  saying,  "By  the  law  of  England,  the  person  who  first  appro- 
priates any  part  of  the  water  flowing  through  his  own  land  to  his  own 
use  has  the  right  to  the  use  of  so  much  as  he  thus  appropriates  against 
any  other."21  And  the  same  was  laid  down  in  early  New  Eng- 
land.22 

(3d  ed.) 

§  670.    Priority  Finally  Displaced  by  Equality. — The  modern 

law,  or  fourth  stage,  rests  upon  a  re-examination  of  the  civil-law 
principles  in  Mason  v.  Hill,23  and  the  more  correct  application  of 
them  made  by  Lord  Denman  in  that  case,  a  matter  already  else- 
where considered  at  much  length.24  It  is  our  object  here  only  to 
show  that  the  modern  common  law  repudiates  both  the  former  ideas 
that  the  right  to  a  watercourse  rests  either  on  an  analogy  to  custom 
or  prescription,  such  as  influenced  the  earliest  cases,  or  on  the  theory 
of  prior  appropriation.  A  recent  note-writer  25  gives  the  following 
regarding  this  change  of  view:  "There  was  a  strong  tendency  on  the 
part  of  some  of  the  judges  in  the  earlier  times  to  recognize  a  right 
to  obtain  title  to  water  by  prior  appropriation  or  occupancy,  and 
at  one  time,  it  seemed  as  though  that  doctrine  would  be  established, 
but  the  later  cases  have  all,  with  one  possible  exception,  been  the 
other  way,  so  that  now  no  such  right  is  recognized.1  But  in  some  of 

20  [1831]  7  Sing.  682.  pee  etc.  Co.    (Mass.    1860),  16  Gray, 

21  See,   also,   II   Blackstone's   Com-  43;  Elliott  v.  Fitchburg  Ry.  (Mass.), 
mentaries,    402.     In    Bealey   v.    Shaw  10  Cush.  191,  57  Am.  Dec.  85;  Black- 
(1805),  2  Smith,  321,  6  East,  208,  102  stone  Mfg.  Co.  v.  Town  of  Blackstone 
Eng.    Reprint,     1266,     Lawrence,    J.,  (1908),  200  Mass.  82,  85  N.  E.  880, 
said :   "It  all  depends  upon  the  priority  18  L.  R.  A.,  N.  S.,  755 ;  Van  Bergen 
of    occupancy."     Le    Blanc,    J.,    said  v.  Van  Bergen   (1818),  3  Johns.  Ch. 
that  the  first  to  erect  a  mill  might  take  282. 

all.     In    Canham   v.    Fisk    (1831),    2  23  5  Barn.  &  Adol.  1,  110  Eng.  Re- 

Cromp.  &  J.  126   (also  2  Tyrw.  155),  print,  692. 

Bayley,  B.,  said:   "There  is  a  fourth  24  Supra,  e.  I. 

mode  of  acquiring  such  a  right,  viz.,  25  30  L.  R.  A.  665,  note. 

by    appropriation.     If    a    man    finds  l  Saying   that   in   the   earlier   cases 

water    running   through   his   land,   he  the  following  decisions  and  dicta  ap- 

may  appropriate  it  and  thus  acquire  a  pear :  Liggins  v.  Inge,  7  Bing.  682 ;  5 

title  to  the  water."  Moore  &  P.   712 ;   Williams  v.   More- 

22  Weston  v.  Allen,  8  Mass.  136,  8  land,  2  Barn.  &  C.  913,  107  Eng.  Re- 
Morr.  Min.  Rep.  82   (1811).     Priority  print,  620;   4  Dowl.  &  R.   583;   Can- 
of  appropriation  is  still  in  force  to  a  ham   v.   Fisk,   2   Cromp.   &  J.   126,   2 
small    extent    under    the    "mill    acts."  Tyrw.    155;    Saunders   v.   Newman,   1 
See  Gary  v.   Daniels,   8  Met.   (Mass.)  Barn.  &  Aid.  258,  106  Eng.  Reprint, 
466.  41  Am.  Dec.  532 ;  Fuller  v.  Chico-  95. 


§  670  Ch.  28.     INTRODUCTORY.  (3d  ed.)   741 

those  early  cases  rulings  which  are  apparently  in  favor  of  the  doc- 
trine of  appropriation  are  in  fact  merely  in  favor  of  protecting  what 
is  known  as  riparian  rights.2  When  the  question  came  squarely  be- 
fore the  court  for  decision,  however,  the  doctrine  of  prior  appropria- 
tion was  repudiated."3  Goddard,  in  his  Law  of  Easements,4  de- 
clares :  "That  all  riparian  owners  of  natural  streams  have  a  riparian 
right  to  the  use  of  water  as  it  flows  past  their  lands,  as  long  as  they 
do  not  interfere  with  the  natural  rights  of  other  riparian  owners, 
and  to  sue  for  disturbance  is  now  an  established  doctrine  of  the 
law."  He  adds:  "The  doctrine  was  not  established  until  compara- 
tively modern  times, ' '  etc.  He  says,  after  referring  to  some  of  the 
earlier  decisions,  that  the  theory  of  appropriation  was  much  modi- 
fied by  various  decisions  "as  the  nature  of  riparian  rights  was 
brought  more  fully  under  consideration."5  He  concludes:  "Ap- 
propriation of  the  water  of  flowing  streams  has  thus  gradually 
fallen  from  being  considered  the  means  of  acquiring  important 
rights  to  being  deemed  of  no  importance  whatever."  In  Chasemore 
v.  Richards,6  Lord  Wensleydale  declares :  ' '  We  may  consider,  there- 
fore, that  this  proposition  is  indisputable,  that  the  right  of  the 
proprietor  to  the  enjoyment  of  a  watercourse  is  a  natural  right, 
and  is  not  acquired  by  occupation  or  presumed  grant, ' ' 7  Lux  v. 
Haggin,8  says :  "  In  examining  the  numerous  cases  which  establish 
that  the  doctrine  of  'appropriation'  is  not  the  doctrine  of  the  com- 
mon law,  we  meet  an  embarrassment  of  abundance. ' ' 

Mason  v.  Hill,9  which  is  considered  to  have  placed  the  common 
law  of  riparian  rights  on  its  present  foundation,  was  decided  in 
1833.  An  elaborate  opinion  was  rendered  by  Lord  Denman,  with 
the  intention  "to  discuss,  and,  so  far  as  we  are  able,  to  settle  the 

2  Stating,  Rutland  v,  Bowler,  Palm.       v.  Hill,  3  Barn.  &  Adol.  304,  110  Eng. 
290,  81  Eng.  Reprint,  1087;  Bealey  v.       Reprint,   114,  and   Cocker  v.   Cowper, 
Shaw,  6  East,  208,  102  Eng.  Reprint,       5  Tyrw.  103. 

1266,   2   Smith,   321;    Holker  v.   For-  6  7   H.   L.   Cas.   384,   11   Eng.   Re- 

ritt,  L.  R.   10  Ex.   59,  44  L.   J.   Ex.  print,   140. 

52;   Frankum  v.  Falmouth,   6  Car.  &  7  "The  court  of  exchequer,  indeed, 

P.  529.  in   the   case    of    Dickinson    v.    Grand 

3  Stating   Mason   v.   Hill,   5   Barn.  Junction    Canal   Co.,    7    Ex.    282,    ex- 
&   Adol.    1,    110    Eng.    Reprint,    692;  pressly  repudiates  the  notion  that  such 
Wood  v.  Waud,  3  Ex.  748,   18  L.  J.  a   right   as   that   in   question   can   be 
Ex.  305 ;  Embrey  v.  Owen,  6  Ex.  355,  founded  on  a  presumed  grant,  but  de- 
20  L.  J.  Ex.   212;   Sampson  v.  Hod-  clares    that   with    respect    to    running 
dinott,  1  Com.  B.,  N.  S.,  611;  Wright  water  it  is  jure  naturae."     Chasemore 
v.  Howard,  1  Sim.  &  St.  190,  57  Eng.  v.  Richards,  7  H.  L.  Cas.  349,  11  Eng. 
Reprint,  76.  Reprint,   140,  Wightman,  J. 

4  Page  251.     Also,  7th  ed.  (1910),  8  69  Cal.  255,  10  Pac.  674. 

p.  348.  9  5  Barn.  &  Adol.  J,  110  Eng.  Ke- 

5  Citing  in  this  connection,  Mason       print,  692. 


742   (3d  ed.)     Pt.  IV.    THE  COMMON  LAW  OF  RIPARIAN  RIGHTS.     §  670 


principle  upon  which  rights  of  this  nature  depend,"  and  this 
case  has  been  generally  accepted  as  accomplishing  this  result,  settling 
the  common  law  of  watercourses  in  its  present  form.10  The  older 
authorities  were  held,  in  that  case,  to  be  devoted  to  an  elucidation 
of  the  principle  borrowed  from  the  civil  law  that  the  water  itself  as 
a  corpus  or  substance  is  not  property  until  taken  into  possession, 
but  do  not  define  the  rules  governing  who  may  have  the  right  to 
take  it  into  possession  or  to  what  extent  a  person  having  the  right 
may  exercise  it ;  and  that  they  are  misconceived  if  thought  to  recog- 
nize the  right  to  take  the  water  into  possession  by  anyone  but  a  land- 
owner on  its  banks,  or  by  such  landowner,  to  the  extent  of  entirely 
depriving  another  landowner  on  its  bank  of  the  advantage  of  that 
stream.  Lord  Denman,  in  giving  the  decision,  said:  "But  it  is 


10  Lord  Blackburn  in  Orr  Ewing  v. 
Colquhoun,  2  App.  Cas.  854,  says  the 
modern  law  of  riparian  rights  "can 
hardly  be  considered  as  settled  law  in 
England  before  the  case  of  Mason  v. 
Hill,  in  1833."  In  another  case  it  is 
said :  "Upon  the  second  trial  of  Mason 
v.  Hill  a  special  verdict  was  found, 
on  the  argument  on  which  Lord  Den- 
man delivered  an  elaborate  judgment 
which  has  always  been  considered  as 
settling  the  law  as  to  the  nature  of 
the  right."  McGlone  v.  Smith,  22  L. 
R.  Ir.  568.  Accord  as  to  the  effect 
of  Mason  v.  Hill,  see  Cocker  v.  Cow- 
per,  5  Tyrw.  103;  Embrey  v.  Owen, 
6  Ex.  353,  20  L.  J.  Ex.  212;  Stock- 
port  W.  W.  Co.  v.  Potter,  3  H.  &  C. 
323,  10  Jur.,  N.  S.,  1005;  Chasemore 
v.  Richards,  7  H.  L.  Cas.  349,  11  Eng. 
Reprint,  140;  Wightman,  J. ;  Pugh  v. 
Wheeler,  19  N.  C.  (2  Dev.  &  B.)  50 
Ruffin,  C.  J. ;  Gale  on  Easements,  8th 
(1908)  ed.,  p.  258;  Angell  on  Water- 
courses, 7th  ed.,  sec.  133;  Salmond  on 
Torts,  p.  254. 

It  should  be  noted,  however,  that 
there  were  one  or  two  earlier  defini- 
tions of  the  right  which  resembled 
the  present  law.  See  Magistrates  v. 
Elphinstone,  quoted  supra,  sec.  17. 
In  Countess  of  Rutland  v.  Bowler, 
Palm.  290,  81  Eng.  Reprint,  1087, 
plaintiff  alleged  that  a  watercourse 
"soloit  currere  per  modestum  et  in- 
cessantem  cursum"  to  a  parcel  of  plain- 
tiff's land  where  she  had  a  mill.  De- 
fendant claimed  that  the  declaration 
was  bad  for  not  alleging  that  it  was 
an  "ancient"  mill,  so  as  to  found  a 


prescriptive  right  to  the  watercourse. 
But  it  was  held  that  it  was  the  same 
whether  the  mill  was  new  or  old;  it 
was  enough  that  the  water  "used 

sequer  cest  course Car  ne  poet 

user  son  terre,  ou  le  water,  qui  passe 
par  son  terre,  al  damage  d'auter,"  and 
judgment  was  entered  for  the  plain- 
tiff. In  1805  Lord  Ellenborough  had 
said:  "The  general  rule  of  law  as 
applied  to  this  subject  is  that,  inde- 
pendent of  any  particular  enjoyment 
used  to  be  had  by  another,  every  man 
has  a  right  to  have  the  advantage  of  a 
flow  of  water  in  his  own  land  without 
diminution  or  alteration,"  and  refers 
later  on  to  this  as  his  "natural  right." 
Beaky  v.  Shaw  (1805),  6  East,  208, 
102  Eng.  Reprint,  1266.  Likewise 
Justice  Story  had  in  1827  rendered 
the  judgment  in  Tyler  v.  Wilkinson 
(4  Mason,  397,  Fed.  Cas.  No.  14,312, 
six  years  before  Mason  v.  Hill),  and 
Story's  opinion  has  been  more  fre- 
quently quoted  in  American  cases  but 
was  itself  based  on  English  cases; 
while  the  second  of  Story's  famous 
decisions  (Webb  v.  Portland  Cement 
Co.,  3  Sum.  189,  Fed.  Cas.  No. 
17,322),  expressly  relied  upon  Mason 
v.  Hill.  Regarding  the  history  of 
Story's  opinion,  see  infra,  sec.  696. 
So,  also,  Kent's  Commentaries  had 
been  issued  before  Mason  v.  Hill. 
Kent,  inter  alia,  referred  to  the  Code 
Napoleon,  which  had  been  proclaimed 
in  1804,  and  contained  an  enactment 
of  the  law  of  riparian  rights  for 
France. 


§671  Ch.  28.     INTRODUCTORY.  (3ded.)  743 

a  very  different  question  whether  he  can  take  from  the  land  below 
one  of  its  natural  advantages,  which  is  capable  of  being  applied 
to  valuable  purposes,  and  generally  increases  the  fertility  of  the  soil 
even  when  unapplied,  and  deprive  him  of  it  altogether  by  anticipat- 
ing him  in  its  application  to  a  useful  purpose We  think  that 

this  proposition  has  originated  in  a  mistaken  view  of  the  principles 
laid  down  in  the  decided  cases."  The  decision  limited  the  right  to 
use  the  water  to  one  by  whose  land  it  flows,  or,  as  he  is  now  called, 
a  riparian  owner ;  and  by  him,  regardless  of  the  time  of  use,  not  to  be 
used  to  the  exclusion  of  other  riparian  owners.  This  is  the  founda- 
tion of  the  present  common  law  of  riparian  rights.  (The  term 
" riparian  proprietor"  does  not  appear  in  the  older  cases  at  all,  nor 
even  in  Mason  v.  Hill.)  The  English  decisions  since  Mason  v. 
Hill  have  firmly  established  the  principles  laid  down  in  that  case.11 

(3d  ed.) 

§  671.     Same. — The  result  of  Mason  v.  Hill  was  that  the  use  of 

running  water  was  confined  to  those  by  whose  land  the  stream 
flows,  as  a  common  benefit,  to  be  enjoyed  by  all  of  them  equally,  with 
priority  to  none.  The  chief  proposition  laid  down  was  that  "It 
appears  to  us  that  there  is  no  authority  in  our  law,  nor  as  far  as 
we  know,  in  the  Roman  law  (which,  however,  is  no  authority  in 
ours),  that  the  first  occupant  (though  he  may  be  the  proprietor  of 
the  land  above)  has  any  right,  by  diverting  the  stream,  to  deprive 
the  owner  of  the  land  below  of  the  special  benefit  and  advantage 
of  the  natural  flow  of  water  therein."  12  So,  likewise,  in  the  well- 
known  decision  of  Justice  Story  in  Tyler  v.  Wilkinson,  some  few 
years  before,  the  law  was  laid  down  that  between  the  landowners 
through  whose  land  the  stream  flows  there  is  a  "perfect  equality 
of  right,"  and  "there  may  be,  and  must  be  allowed  to  all,  of  that 
which  is  common,  a  reasonable  use";  but  an  exclusive  right  is  given 
to  none,  except  by  prescription  or  the  grant  or  consent  of  all  the 
riparian  proprietors,  for  the  water  is  common  to  them  all.  "Mere 
priority  of  occupation  of  running  water,  without  such  consent  or 
grant,  confers  no  exclusive  right.  It  is  not  like  the  case  of  mero 

ll  See  Wilts  etc.  Canal  Co.  v.  Swin-  v.  Fishmongers'  Co.,  L.  B.  1  App.  Gas. 

don  W.  W.  etc.  Co.,  L.  R.  9  Ch.  451;  673;  Sandwich  v.  Ry.,  10  Ch.  D.  707; 

Swindon  Waterworks  Co.  v.  Wilts  etc.  Kensit  v.  Great  Eastern   Ry.  Co.,  27 

Co.,  I>.  R.   7   H.   L.   697;    McCartney  Ch.  D.  122;   White  v.  White,   [1906] 

v.  Londonderry  Ry.,  [1904]  App.  Gas.  App.  Gas.  81. 

301 ;   Miner  v.  Gilmour,  12  Moore  P.  12  Mason  v.  Hill,  5  Barn.  &  Adol.  1, 

C.  131,   14  Eng.  Reprint,  861;   Lyon  110  Eng.  Reprint,  692. 


744  (3d  ed.)     Pt.  IV.    THE  COMMON  LAW  OF  RIPARIAN  RIGHTS.    §  672 

occupancy,  where  the  first  occupant  takes  by  force  of  his  priority  of 
occupancy.  That  supposes  no  ownership  already  existing,  and  no 
right  to  the  use  already  acquired.  But  our  law  awards  to  the 
riparian  proprietors  the  right  to  the  use  in  common,  as  one  incident 
to  the  land ;  and  whoever  seeks  to  found  an  exclusive  use  must  es- 
tablish a  rightful  appropriation  in  some  manner  known  and  ad- 
mitted by  the  law"13  (meaning  by  grant,  condemnation  or  pre- 
scription). 

(3d  ed.) 

§  672.  Same. — The  contention  that  the  doctrine  of  exclusive 
rights  by  priority  of  appropriation  is  to-day  recognized  by  the 
common  law  is  disposed  of  by  Judge  Cooley 14  in  the  following 
words :  "  ....  We  may  dismiss  from  the  mind  the  fact  that  the 
plaintiff  had  first  put  the  waters  of  the  stream  to  practical  use, 
since  that  fact  gave  him  no  superiority  in  right  over  the  defendant. 
The  settled  doctrine  now  is  that  priority  of  appropriation  gives 
to  one  proprietor  no  superior  right  to  that  of  the  others,  unless 
it  has  been  continued  for  a  period  of  time,  and  under  such  circum- 
stances as  would  be  requisite  to  establish  rights  by  prescription. ' ' 15 
And  so  also  it  is  declared  for  private  lands  at  the  present  day  in 
those  parts  of  the  West  where  the  common  law  is  in  force:  "There 
is  no  such  thing  as  prior  riparian  ownership,  so  far  as  distribution 
of  water  for  irrigation  purposes  between  riparian  owners  is  con- 
cerned." 18 

(3d  ed.) 

§  673.    Riparian  Rights  Under  the  California  Doctrine. — Under 

the  California  doctrine  the  system  of  appropriation  applies  to 
diversions  made  while  streams  flowed  over  public  lands,  where 
there  are  no  riparian  proprietors ; 17  that  of  riparian  rights  applies 
to  waters  whose  bordering  lands  became  private  before  diversion ; 18 
as  already  set  forth  in  the  second  part  of  this  book. 

13  Tyler  v.  Wilkinson,  4  Mason,  397,       speaking   of   rights   between   riparian 
Fed.  Gas.  No.  14,312.  proprietors     between     themselves,     as 

nn  •»«••  t.    ,4 on        such,  under  the  common  law.     As  to 

14  Dumont  v.  Kellogg,  29  Mich.  420,       ^  Qutgide  tfae  comm(m  J&w  wfaere 

i  Am.  Kep.  1U<J.  diversions  are  made  on  the  public 

is  Citing  eases.  domain  before  riparian  settlements 

16  Hough  v.  Porter,  51  Or.  318,  95  have  been  made  by  other  riparian 

Pac.  732,  98  Pae.  1083,  102  Pac.  728;  owners,  see  supra,  sec.  257. 

Williams   v.   Altnow,   51   Or.    275,   95  17  Supra,  sees.  155,  198,  257. 

Pac.  200,  97  Pac.  539;  Lone  Tree  Co.  18  Supra,  sees.   221  et  seq.,  257  et 

v.  Cyclone  Co.  (S.  D.),  128  N.  W.  596,  seq.;  infra,  sec.  814  et  seq. 


§  673  Ch.  28.     INTRODUCTORY.  (3d  ed.)   745 

It  is  sometimes  said  that  in  applying  the  common  law  to  irriga- 
tion with  respect  to  such  private-land  streams,  the  California  court 
(and  similar  courts)  modified  or  changed  the  common  law.  Rights 
acquired  while  the  stream  flowed  over  public  land  are,  it  is  true, 
not  governed  by  the  common  law;  and  so,  in  fact,  most  irrigation 
in  California  is  not  done  under  the  riparian  system,  being,  done 
under  such  early  public-land  rights,  or  by  grant  or  prescription, 
which  to-day  cover  the  normal  flow  of  nearly  all  streams  in  South- 
ern California  and  in  the  San  Joaquin  Valley.  But  as  to  streams 
now  upon  private  land,  so  far  as  their  waters  have  not  hitherto  been 
covered  by  such  rights,  and  as  to  the  hundreds  of  little  streams 
that  have  not  been  made  the  basis  of  any  extensive  project,  there  is 
little  foundation  for  the  statement  that  the  common  law  is  modified. 

That  the  most  essential  feature  of  the  common  law,  the  exclusion 
of  nonriparian  owners  or  lands  from  rights  in  streams  on  private 
land,  is  not  changed  or  modified  in  California,  but  is  in  force  there 
as  in  England,  is  fairly  settled  by  the  decision  on  rehearing  in 
Miller  et  al.  v.  Madera  etc.  Co.19 

It  has,  however,  sometimes  been  said  that  as  between  the  riparian 
owners  themselves  for  their  own  lands,  the  California  court,  in 
permitting  a  reasonable  use  by  each  for  irrigation,  modified  or 
changed  the  common  law;  that  permitting  irrigation -even  between 
riparian  owners  is  peculiar  to  the  West.20  If  this  were  in  truth 
a  change,  it  would  be  a  minor  one  compared  with  the  exclusion 
of  nonriparian  owners.  But  it  is  not  a  change,  for  between  the 
riparian  owners  themselves,  the  common  law  everywhere  permits  a 
reasonable  use  for  irrigation,  and  did  not  have  to  be  modified.  In 
Lux  v.  Haggin,21  the  question  is  thoroughly  examined,  and  it  is 
shown  that  there  is  nothing  in  this  peculiar  to  the  West,  and  the  fre- 
quency with  which  Lux  v.  Haggin  has  been  cited  for  the  "modifica- 
tion ' '  statement  simply  shows  that  the  case  has  met  the  fate  of  all 
over-long  opinions,  and  has  not  been  read.22  In  later  sections, 
where  the  authorities  are  quoted,23  it  becomes  fully  apparent  that 
the  allowance  in  California  of  a  reasonable  use  for  irrigation  by 
the  riparian  proprietors  among  themselves  (excluding  nonriparian 

i»  (1909),  155  Cal.  59,  99  Pac.  502,  21  69  Cal.  255;  at  398  et  seq.,  10 

22  L.  R.  A.,  N.  S.,  391,  Sloas,  J.,  ren-  Pac.  674. 

dering  the  opinion.     Nor  is  this  state-  22  The  basis  of  Lux  v.  Haggin  was 

ment  impaired  by  the  later  decision  in  that  the  court  had  no  power  to  modify 

San  Joaquin  Co.  v.  Fresno  Flume  Co.  the  common  law  at  all. 

(Cal.),  112  Pac.  182.     See  infra,  see.  23  Infra,  sees.  745  to  749a,  and  sec. 

825  et  seq.  799. 

20  Infra,  sec.  749a, 


746  (3d  ed.)     Pt.  IV.    THE  COMMON  LAW  OF  RIPARIAN  RIGHTS.     §  674 

owners  or  lands)  is  no  modification  of  the  common  law,  and  is  no 
basis  for  the  statement,  so  often  improperly  made,  that  the  law  of 
riparian  rights  has  been  modified  in  California.  Appropriation 
of  waters  while  they  still  flow  over  public  lands,  where  there  are 
no  riparian  proprietors,  is  the  only  exception  in  California  to  the 
usual  rules  of  riparian  rights.24 

(3d  «d.) 

§  674.  Conclusion. — Upon  the  entire  subject  of  riparian  rights 
the  case  of  Lux  v.  Haggin  is  the  leading  case  in  California, 
though  the  actual  decision  did  not  determine  the  rights  of  riparian 
proprietors  inter  se  in  that  case.25 

The  law  of  riparian  rights  is  almost  wholly  nonstatutory  in  the 
West.  The  statutes  of  Washington  mention  them  more  than  else- 
where; in  Oregon  the  statutes  up  to  1909  (chiefly  the  code)  recog- 
nized them  but  did  not  attempt  to  define  nor  establish  any  rule 
respecting  them ; 26  while  in  California,  since  the  repeal  in  1887 
of  section  1422  of  the  Civil  Code,  no  statute  even  mentions  ripa- 
rian rights  except  occasional  wholly  incidental  code  sections,  which 
do  little  more  than  mention  them.27 

The  California  law  has  had  to  thread  its  way  through  a  mass 
of  difficulties.  The  high  state  of  irrigation,  and  the  variety  of 
power  and  mining  problems,  presented,  in  a  State  of  such  varied 
natural  conditions,  difficulties  of  adjustment  as  unparalleled  as  the 
resources  of  the  State  itself.  The  prosperity  of  the  State  owes 
much  to  the  foresight  and  yet  conservatism  which  the  supreme 
court  has  always  shown  in  dealing  with  this  subject;  and  while 
many  problems  remain  yet  unsolved,  they  may  be  confidently  left 
to  the  court. 

There  are  several  matters  common  to  the  use  of  water  under 
both  the  systems  of  appropriation  and  riparian  rights.  Such,  for 
example,  are  the  general  fundamental  conceptions  regarding  run- 
ning water,28  which  are  the  same  under  both  systems,  which  have 
diverged  only  in  the  superstructure  where  the  common  law  aims 

24  See  supra,  sees.  174,  228;  infra,       riparian    owners    as     between     them- 
sec.  815  et  seq.  selves."     Lux  v.  Haggin,  69  Cal.  255, 

25  The  court  said:  "It  will  be  noted       10  Pac.  674. 

(since  the  defendant  is  not  a  riparian  26  Hough  v.  Porter,  51  Or.  318,  95 

proprietor,   unless  made   such  by  the  Pac.  732,  98  Pac.  1083,  102  Pac.  728. 

mere  fact  of  its  appropriation)   that  27  See    Pol.    Code,    sec.    4043;    Civ. 

the  exigencies  of  the  present  case  do  Code,  sec.  1416,  as  amended  in  1907; 

not  imperatively  demand  that  we  shall  Code  Civ.  Proc.,  sec.  1248. 

here  determine  the  respective  rights  of  28  Supra,  Part  I. 


§674  Ch.28.     INTRODUCTORY.  (3ded.)  747 

at  equality  and  the  law  of  appropriation  at  exclusive  rights  by 
priority.  Such  also,  to  a  great  extent,  are  the  questions  of  pre- 
scription, eminent  domain  and  procedure.  Having  already  consid- 
ered these  matters  in  previous  chapters,  little  more  is  said  in  the  fol- 
lowing ones  other  than  in  such  instances  where  there  may  be  a 
difference.  As  a  general  thing,  however,  cases  decided  under  the 
law  of  riparian  rights  have  been  excluded  from  the  foregoing  part 
of  this  book,  and  the  converse  is  true  of  what  follows,  even  though, 
in  some  respects,  the  rule  be  the  same  under  both  systems. 

§§  675-683.     (Blank  numbers.), 


748  (3d  ed.).    Pt.  IV.    THE  COMMON  LAW  OF  RIPARIAN  RIGHTS.    §  684 


CHAPTER  29. 

FOUNDATIONS  OF  THE  SYSTEM  OF  RIPARIAN  RIGHTS. 

§  684.     Introductory. 

A.     GENERAL. 
§  685.     The  civil  law. 

§  686.     The  common  law  borrowed  from  the  civil  law. 
§  687.     The  corpus  of  naturally  running  water  is  not  property. 
§  688.     Same — Publici  juris,  etc. 
§  689.     But  one  may  own  a  right  to  its  flow  and  use — The  law  recognizes 

a  usufructuary  right. 

§  690.  When  taken  into  possession,  the  substance  becomes  private  property. 
§  691.  Systems  of  water  law  are  but  a  development  of  these  three  "first 

principles." 

B.     ACCESS  TO  THE  STREAM. 

§  692.    None  but  riparian  proprietors  have  access  to  the  stream. 
§  693.     Same. 
§  694.     Same. 
§  695.     Same. 

C.     THE   RIPARIAN   RIGHT   DOES    NOT   REST   UPON    THE   MAXIM 

"CUJUS  EST  SOLUM." 
§  696.     The  cujus  est  solum  doctrine. 
§  697.     Same. 
§  698.     Same. 
§  699.     Results. 
§§  700-708.     (Blank  numbers.) 

(3d  ed.) 

§  684.     Certain  of  the  following  matters  have  been  more  fully 

considered  in  the  opening  chapters  of  this  book,  and  are  here 
given  in  more  condensed  form  in  order  to  present  as.  a  whole  the 
foundations  of  the  common  law  of  riparian  rights. 

A.     GENERAL. 
(3d  ed.) 
§  685.     The  Civil  Law. — The  first  principle  of  the  civil  law  is 

that  stated  in  the  Justinian  Institutes:  "By  natural  law  these 
things  are  common  to  all:  air,  running  water,  the  sea,  and  as  a 
consequence,  the  shores  of  the  sea."  This  classification  is  to  de- 
note things  adaptable  to  general  use  in  common,  the  "res  com- 
munes" or  "things  common"  of  which,  in  their  natural  condition, 


5  C33  Ch.  29.     THEORY  OF  THE  COMMON  LAW.       (3d  ©d.)  749 

no  person  has  control  or  ownership;  things  without  an  owner  in 
their  natural  situation;  or,  as  they  have  been  called,  "the  nega- 
tive community,"  or  "things  the  property  of  which  belongs  to  no 
person."  Among  them  were  also  the  fish  and  wild  beasts,  the 
light  and  heat  of  the  sun,  and  the  like.  Running  water  was  so 
classed  because  at  one  instant  it  is  in  one  place  in  the  river,  then 
it  is  gone  and  some  other  water  has  succeeded  it,  without  anyone 
having  been  able  to  say  that  he  had  it  as  his  own ;  a  thing  of  con- 
tinual motion  and  ceaseless  change,  not  susceptible  of  exclusive 
possession  nor,  hence,  of  ownership.1 

But  the  civil  law  distinguished  the  use  of  the  water  from  the 
water  itself.  While  the  naturally  flowing  water  thus  was  without 
an  owner  and  nobody's  property,  the  civil  law  recognized  a  right 
of  property  in  its  use,  which  was  called  a  "usufruct."2 

This  usufruct  belonged  to  those  who  had  access  to  the  water, 
and  only  those  who  had  access  to  it  by  virtue  of  ownership  of 
riparian  land  could  take  and  use  it.  Eschriche3  says  that 
waters  of  fountains  and  springs  as  they  go  out  from  thence 
"become  running  waters,  aqua  profluens,  and  pertain  like  common 
things  (cosas  comunes)  to  the  first  who  occupies  them,  so  far  as 
he  has  need  of  them.  The  first  who  can  occupy  them  are  the 
owners  of  the  estates  which  they  bathe  or  cross."  He  then  treats 
of  the  rights  of  riparian  proprietors  to  the  use  of  the  waters  as  be- 
tween themselves.4  So  it  is  said :  "  No  one  may  enter  private  prop- 
erty in  search  of  waters  or  make  use  of  them  without  permission 
from  its  owner."5  Under  the  Mexican  law  "the  waters  of  innavi- 
gable rivers,  while  they  continued  such,  were  subject  to  the  common 
use  of  all  who  could  legally  gain  access  to  them  for  purposes  neces- 
sary to  the  support  of  life. ' ' 6 

The  riparian  proprietors  (having  the  sole  right  of  use  because  of 
the  sole  right  of  access  given  by  their  inclosing  land,  excepting 

1  Supra,  c.  1.  Pae.  674.     That  the  right  to  take  and 

2  Supra,  c.  2.  use  the  waters  at  civil  law  was,  as  at 
8  Eschriche,  "Aguas."  common  law,  in  the  riparian  propri- 
•*  Quoted  infra,  sec.  1026.  etors    because   of    their   right   of  ac- 
6  Spanish  Civil  Code,  sec.  414,  given  cess,  see  Lord  Kingsdown  in  Miner  v. 

in  Walton's  Civil  Law  of  Spain  and  Gilmour,  12  Moore  P.  C.  131,  14  Eng. 

Spanish  America,  p.  204.      "If  the  ace-  Reprint,  861,  concerning  French  law ; 

quia  shall  cross  the  land  of  another,  Van  Breda  v.  Silberbauer,  L.  R.  3  P. 

or  the  crown  lands,  or  the  land  common  C.    94;     Commissioners    of    Hoek    v. 

to   the   inhabitants   of   the   pueblo,   a  Hugo,  L.  R.  10  App.  345,  the  latter 

license  from  the  private  owner,  or  the  two   concerning  Roman-Dutch   law  of 

king,  or  from  the  town  council  is  in-  Cape  of  Good   Hope.     We  cite   these 

dispensable."     Eschriehe,    "Aceouia."  on  the   authority  of  Lux  v.   Haggin, 

6  Lux  v.   Haggin,   69   Cal.   255,   10  wherein  they  are  given. 


.  750   (3d  ed.)     Pt.  IV.   THE  COMMON  LAW  OF  RIPARIAN  RIGHTS.     §  686 

streams  on  the  public  domain)  could  not  any  one  of  them  make 
exclusive  use  of  the  stream.  The  Code  Napoleon  provides:7  "He 
whose  property  borders  on  a  running  water,  other  than  that  which 
is  declared  a  dependency  on  the  public  domain  by  article  538,  may 
employ  it  in  its  passage  for  the  watering  of  his  property.  He  whose 
estate  is  intersected  by  such  water,  is  at  liberty  to  make  use  of  it 
within  the  space  through  which  it  runs,  but  on  condition  of  restor- 
ing it,  at  the  boundaries  of  his  field,  to  its  ordinary  course."  The 
Louisiana  Code  likewise  says:8  "He  whose  estate  borders  on  run- 
ning water,  may  use  it  as  it  runs,  for  the  purpose  of  watering  his 
estate,  or  for  other  purposes.  He  through  whose  estate  water  runs, 
whether  it  originates  there  or  passes  from  lands  above,  may  make 
use  of  it  while  it  runs  over  his  land ;  but  he  cannot  stop  or  give  it 
another  direction,  and  is  bound  to  return  it  in  its  ordinary  channel 
where  it  leaves  his  estate."9  Commenting  upon  the  above  passage 
in  the  Code  Napoleon,  a  French  writer  says:  "The  rights  of  use 
mentioned  in  article  644  are  given  only  to  the  riparian  proprietors; 
that  is,  to  the  proprietors  of  the  estates  contiguous  to  the  flow  of 
the  water. '-' 10  This  right  of  use  was  called,  in  the  civil  law,  a 
"usufruct."11 

Speaking  of  the  civil  law  regarding  the  use  of  waters,  Mr.  Yale  12 
says:  "These  rights  do  not,  as  has  been  seen,  differ  substantially, 
so  far  as  private  property  is  concerned,  from  the  common  law. ' ' 

(3d  ed.) 

§  686.  The  Common  Law  Borrowed  These  Civil-law  Ideas. — 
The  early  common-law  cases  already  referred  to  13  seeming  to  up- 
hold the  right  of  appropriation  did  so  by  accepting  the  civil-law 
idea  that  the  corpus  of  the  water  was  not,  while  flowing  naturally, 
the  property  of  anyone.  They  erroneously  considered  that  an 
exclusive  flow  and  use  could  be  acquired  by  the  first  appropriator 
on  that  account,14  this  last  being  rejected  in  Mason  v.  Hill,  but  not 

7  Code  Napoleon,  art.  644.     Italics          n  An  extended  note  upon  the  civil 
ours.  law  of  waters  is  given  infra,  sec.  1025, 

8  Louisiana,  Code,  art.  657.     Italics      et  seq. 

ours.  12  Yale    on    Mining     Claims     and 

3  Par  Autorite,  New  Orleans,  1838.  Water  Rights,  p.  153. 

10  "Les   droits   d'usage    mentionnes  13  Supra,  sec.  669. 

4n  Part   644  ne  sont   accordes  qu'aux  l4  "The    expressions    used    by    Mr. 

riverains,    c'est-a-dire,     aux     proprie-  Justice  Bayley  in  Williams  v.   More- 

taires    de    fonds     contigus    au     cours  land,  2  Barn.  &  C.  910,  107  Eng.  Rc- 

d'eau."     Droit      Civile    Francais,    by  print,  620,  and  by  Lord  Chief  Justice 

Aubrey  &  Rau,  4th  ed.,   vol.   Ill,  p.  Tindal   in   Liggins   v.   Inge,   7    Bing. 

47.  682,   that  water  flowing   in  a  stream 


§68G  Ch.  29.     THEORY  OF  THE  COMMON  LAW.       (3ded.)751 

changing  the  first  principle.  In  Mason  v.  Hill,  Lord  Denman  sets 
forth  the  civil  law  in  the  passage  already  quoted,  and  in  Embrey  v. 
Owen,  Baron  Parke  takes  that  civil-law  statement  (that  the  corpus 
of  the  water  was  not  property  while  flowing  naturally),  and  accepts 
it  as  stating  the  common  law  also.15 

In  this  the  common  law,  as  in  most  branches  of  the  law  of  waters, 
is  founded  on  the  civil  law.  The  connection  we  have  already  traced 
at  much  length.16  We  merely  repeat  here  a  few  of  the  authorities. 
The  passage  in  the  Institutes  above  quoted  classing  running  water, 
as  a  substance,  with  the  air,  is  transcribed  by  Bracton  as  the  law  of 
England,  saying:17  "Natural!  vero  jure  communia  sunt  omnium 
haec — aqua  profluens,  aer,  et  mare,  et  littora  maris,  quasi  maris 
accessoria,"  and  similar  passages  appear  in  the  works  of  other 
ancient  English  writers.18  From  these  partly,  but  probably  more 
from  the  civil-law  writers  directly,  this  passed  into  Blackstone  19 
and  the  early  English  cases,20  and  from  Blackstone  and  Mason  v. 
Hill  into  modern  law.  It  is  the  same  direct  connection  as  that 
shown  in  the  law  of  accretion,  as  to  which  it  has  been  said : 21 
"Our  law  may  be  traced  back  through  Blackstone,22  Hale,23  Brit- 
ton,24  Fleta,25  and  Bracton,26  to  the  Institutes  of  Justinian,1  from 
which  Bracton  evidently  took  his  exposition  of  the  subject."  The 
common  law  of  fishing  is  likewise  based  upon  the  civil  law.2 
The  name  "riparian  proprietor"  is  itself  borrowed  from  the  civil 
law.  "The  owners  of  watercourses  are  denominated  by  the  civil- 
ians riparian  proprietors,  and  the  use  of  the  same  significant  and 
convenient  term  is  now  fully  introduced  into  the  common  law."3 
And  the  writer  has  had  occasion  to  examine  recent  French  cases 
where  it  will  be  found  the  courts  discuss  the  right  of  the  "pro- 
is  publici  juris,  and  the  property  of  following;  Wright  v.  Howard  (1823), 
the  first  occupier,  are  founded  on  a  1  Sim.  &  S.  203,  57  Eng.  Reprint,  81. 
mistake  between  the  property  in  the  See,  also,  Bealey  v.  Shaw  (1805),  6 
water  itself  and  the  riglit  to  have  its  East,  208,  102  Eng.  Reprint,  1266. 
continual  flow."  Chasemore  v.  Rich-  21  Lindley,  L.  J.,  says  in  Foster  v. 

ards,  7  H.  L.  Gas.  349,  11  Eng.  Re-  Wright,  4  C.  P.  D.  438,  speaking  of 
print,  140,  Lord  Wensleydale.  the  law  of  accretion. 

is  Quoted  infra,  sec.  694.  22  Vo]   n  c   lg          2(n    2Q^ 

16  Supra,  sec    3  23  De  Jure  Maris,  cc.  i,  6. 

17  Bracton,  lib.  2,  f.  7,  sec.  5.  24  Bk    II   c    2 

is  Supra,  sec.  3  et  seq.  25  Bk   III  c  2  sec  6  etc 

19  II  Blackstone,  14,  395,  quoted  be-  26  Bk'  -jj  'c  '2  '  ' 
low. 

20  Liggins  v.  Inge  (1831),  7  Bing.  1  Just.  II,  1,  20. 

692,  and  Williams  v.  Moreland  (1824),  2  Schultes'  Aquatic  Rights,  p.  1. 

2  Barn.  &  C.  910,  107  Eng.  Reprint,  3  Angell  on  Watercourses,  6th  ed., 

620,  both  quoted  in  the  second  section       sec.  10. 


752  (3ded.)    Pt.  IV.    THE  COMMON  LAW  OF  EIPARIAN  RIGHTS.    §687 

prietaire  riverain."  In  Miner  v.  Gilmour,4  Lord  Kingsdown 
said  the  French  law  and  the  common  law  are  not  materially 
different.5 

The  passages  above  given  from  the  civil  law  show  the  resemblance 
of  the  common  law  to  it,  and  an  examination  of  the  first  principles 
of  the  common  law  shows  them  to  be  borrowed  from  the  civil  law, 
as  briefly  noted  in  the  following  sections.8 

(3d  ed.) 

§  687.  The  Corpus  of  Naturally  Running  Water  is  not  Prop- 
erty.— The  law  distinguishes  between  the  corpus  or  particles  of 
liquid,  and  the  usufructuary  right  with  respect  to  it. 

While  in  the  natural  stream,  the  law  says  the  particles  are  not 
the  subject  of  private  ownership.  The  California  court  says:  "This 
court  has  never  departed  from  the  doctrine  that  running  water,  so 
long  as  it  continues  to  flow  in  its  natural  course,  is  not,  and  cannot 
be  made,  the  subject  of  private  ownership."7  A  claim  to  the 
corpus  of  water  of  a  river  was  said  in  the  House  of  Lords  to  be  "  so 
repugnant  to  the  general  law  of  rivers  that  it  is  surprising. ' ' 8 
Another  case  says:  "No  one,  therefore,  can  have  an  exclusive  right 
to  the  aggregate  drops  of  water  that  compose  the  mass  thus  flowing, 
without  contravening  one  of  the  most  peremptory  laws  of  nature."  9 
In  the  old  case  of  Shury  v.  Piggott,10  aqua  profluens  was  compared 
to  light  and  air,  which  "aut  invenit  aut  facit  viam."  Says  Black- 
stone,  speaking  of  the  very  elements  of  fire  or  light,  of  air  and  of 
water:  "A  man  can  have  no  absolute  permanent  property  in  these, 
as  he  may  in  the  earth  and  land  since  these  are  of  a  vague  and 

4  12  Moore  P.  C.  156,  14  Eng.  Re-  McKee :  McKee,  J. :  "What  is  the  dif- 
print,   861.  ference  between  that  and  the  common 

5  "There   is   no   material   difference  law?"     McAllister:    "There   does   not 
between  the  common-law  rule  and  that  seem  to  be  any  material  difference  so 
of     the    Roman     and     French    law."  far    as    I    can    understand."     An    ex- 
Fleming  v.  Davis,  37  Tex.  199  (though  tended  note  on  the  modern  civil  law 
adding  that  irrigation  works  are  usu-  of   waters   will   be   found   below,   sec. 
ally    constructed    at     public     expense  1025  et  seq. 

and  under  public  control  in  Europe).  6  See    the  -author's    article    in    22 

In  Irwin  v.   Phillips,  5  Cal.    140,   63  Harvard      Law      Review,      190.      See 

Am.    Dec.    113,    15    Morr.    Min.    Rep.  supra,    cc.  1,  2,  3. 

178,  the  California  court  said  the  com-  7  Kidd   v.   Laird,    15   Cal.    161,    76 

mon   law   and   the   civil   law   are   the  Am.  Dec.  472,  4  Morr.  Min.  Rep.  571. 

same.     On    the    argument   in    Lux   v.  8  White  v.  White  [1906],  App.  Cas. 

Haggin,    Mr.    Hall    McAllister    read  84. 

passages    of    the    Spanish    law    from  9  Gibson,  C.  J.,  in  Mayor  v.  Com- 

Eschriche,  and  the  following  colloquy  missioners,  7  Pa.  363. 

occurred  between  him  and  Mr.  Justice  10  Poph.  169. 


§688  Ch.  29.     THEORY  OF  THE  COMMON  LAW.       (3ded.)  753 

fugitive  nature";  n  and  it  has  been  said: 12  "The  water  which  they 
claim  a  right  to  take  [from  a  spring]  is  not  the  produce  of  the 
plaintiff's  close;  it  is  not  his  property;  it  is  not  the  subject  of  prop- 
erty. Blackstone,  following  other  elementary  writers,  classes  water 
with  the  elements  of  light  and  air. ' '  This  is  the  classification  of  the 
Institutes  above  quoted. 

(3d  ed.) 

§  688.  Same — Public!  Juris,  etc. — Confusion  appears  in  the 
authorities  upon  the  use  of  the  terms  that  waters  are  "publici 
juris,"  "res  communes,"  "bonum  vacans."  13 

The  proposition  that  water  is  "publici  juris"  is  borrowed  from 
the  civil  law,  says  Lord  Denman  in  Mason  v.  Hill.14  The  leading 
authority  for  this  statement  is  the  case  of  Liggins  v.  Inge,15  say- 
ing: "Water  flowing  in  a  stream,  it  is  well  settled  by  the  law  of 
England,  is  publici  juris.  By  the  Roman  law,  running  water,  light 
and  air  were  considered  as  some  of  those  things  which  had  the  name 
of  res  communes,  and  which  were  defined  'things,  the  property  of 
which  belong  to  no  person,'  etc."  In  the  case  of  Williams  v.  More- 
land,16  the  expressions  are  used,  "Flowing  water  is  originally 
publici  juris,"  and  "running  water  is  not  in  its  nature  private 
property."  In  another  case:  "Flowing  water,  as  well  as  light 
and  air,  are,  in  one  sense,  'publici  juris.'  They  are  a  boon  from 
Providence  to  all,  and  differ  only  in  their  mode  of  enjoyment. 
Light  and  air  are  diffused  in  all  directions,  flowing  water  in 
some. ' ' 17 

It  will  be  noted  that  in  one  of  these  quotations  it  is  said  that 
running  water  is  among  the  "res  communes,"  and  Blackstone  (be- 
low) says,  "water  is  common,"  while  Liggins  v.  Inge  uses  this  as 
synonymous  with  "publici  juris."1  But  whether  called  "publici 

11  Blackstone,  Bk.  II,  c.  XXV,  p.          17  Wood  v.  Waud,  3  Ex.  748.     See, 
395.  also,  Manning  v.  Wasdale,  5  Ad.  &  E., 

12  Race  v.  Ward,  4  El.  &  Bl.  702.  758   at  762 

,,  ...        .  ,     ,,  TT-,,  1  In  an  old  annotation  to  the  Pan- 

is  See   for  example    Mason  v.  Hill,       d  f  Justinian  (Pand    j    lib    tit 

5  Barn.  &  Adol.  1,  110  Eng.  Reprint,       g      .    fl   .      Schultes\   A       ti£  Ri  ht 
692;   Embrey  v    Owen,  6  Ex.  3o2,  2-  }     ^  wor(J         ^  ig          ^ 

KT'  Eo-,o1SU  TT^      M       *        ?n?'  Declared  Anonymous  with  "common." 

7  Nev.  249,  15  Morr.  Mm.  Rep.  503.  Sir   Mattlfew    ^ale     uses     the     terms 

See  supra,  sees.  5,  6.  "publici    juris"     and     "common"     as 

14  5  Barn.  &  Adol.  1,  110  Eng.  Re-  synonymous,   saying    (in  his  Analysis 
print,  692.  of  the  Civil  Part  of  the  Law)  :   "Those 

15  [1831]   7  Bing.  692.  things  that  are  publici  juris  are  such 

16  [1824]    2    Barn.   &   C.   910,    107  as,  at  least  in  their  own  use,  are  com- 
Eng.  Reprint,  620.  mon  to  all  the  king's  subjects." 

Water  Rights — 48 


754  (3ded.)     Pt.  IV.    THE  COMMON  LAW  OF  RIPARIAN  RIGHTS.     §  G8& 

juris"  or  "res  communes,"  it  is  now  settled  that  either  form  of  ex- 
pression means  only  that  the  corpus  of  naturally  flowing  water  is 
not  the  subject  of  private  ownership,  and  is  not  property  in  any 
sense  of  the  word.  After  setting  this  forth  Lord  Denman  said  in 
Mason  v.  Hill :  ' '  We  think  that  no  other  interpretation  ought  to  be 
put  upon  the  passage  in  Blackstone,  and  that  the  dicta  of  the 
learned  judges  above  referred  to,  in  which  water  is  said  to  be  publici 
juris,  are  not  to  be  understood  in  any  other  than  this  sense. ' ' 

In  American  cases,  the  phrase  "publici  juris"  is  also  used.  In 
a  leading  case  Shaw,  C.  J.,  said:  "The  right  to  the  use  of  flowing 
water  is  publici  juris,  and  common  to  all  the  riparian  proprietors."  2 
Justice  Story  also  said  in  Tyler  v.  Wilkinson 3  that  the  water  is 
common  to  all. 

All  these  phrases  are  primarily  nothing  more  than  expressions 
of  the  rule  that  the  water  itself  is  not  in  its  nature  private  prop- 
erty while  flowing  naturally,  but  is  in  a  class  with  the  air.  This- 
principle,  borrowed  from  the  Institutes,  is  likewise  fundamental  in 
the  common  law.4 

(3d  ed.) 

§  689.  But  One  may  Own  a  Right  to  Its  Flow  and  Use — The 
Law  Recognizes  a  Usufructuary  Right. — While  the  law  does  not 
regard  the  liquid  itself  as  property  while  flowing  naturally,  any 
more  than  the  air,  it  recognizes,  nevertheless,  a  very  substantial 
right  in  its  flow  and  use ;  the  right  to  have  the  liquid  flow  and  to 
use  and  take  of  it;  which  the  law  calls  "the  usufructuary  right,'* 
or  "the  water-right."  In  California  it  has  been  said:  "A  right 
may  be  acquired  to  its  use  which  will  be  regarded  and  protected 
as  property,  but  it  has  been  distinctly  declared  in  several  cases  that 
this  right  carries  with  it  no  specific  property  in  the  water  itself."  fv 
And  says  Blackstone : 6  "  For  water  is  a  movable,  wandering  thing, 
and  must  of  necessity  continue  common  by  the  law  of  nature;  so 
that  I  can  only  have  a  temporary  transient  usufructuary  property 
therein."  And  says  Story:7  "But,  strictly  speaking,  he  has  no 

2  10  Gush.  (Mass.)  191,  57  Am.  4  Likewise  under  the  law  of  appro- 
Dec.  85.  See,  also,  Carey  v.  Daniels,  priation,  borrowing  from  the  common 
8  Met.  (Mass.)  466,  41  Am.  Dec.  532  law.  Supra,  Part  I,  and  supra,  sees. 
(Shaw,  C.  J.)  ;  United  States  v.  Con-  276,  277. 

rad  Inv.  Co.  (Or.),  156  Fed.  127.     See  5  Kidd   v.   Laird,    15    Cal.    161,    76 

supra,  sees.  4-6.  Am.  Dec.  742,  4  Morr.  Min.  Rep.  571. 

4     Mason      397      Fed      Gas      No  6  2  Blackstone's  Commentaries,   18. 

4     Mason,    rf97,    ±ed.    Oas.    No.  7  Tyler  y    wilkin          4  Mass    39- 

Fed.  Gas.  No.  14,312. 


§690  Ch.  29.     THEORY  OF  THE  COMMON  LAW.       (3ded.)755 

property  in  the  water  itself,  but  a  simple  use  of  it  while  it  passes 
along/'  And  Kent:  8  "He  has  no  property  in  the  water  itself  but 
a  simple  usufruct  as  it  passes  along."  In  a  Nebraska  case  it  is 
said:  "The  law  does  not  recognize  a  riparian  property  right  in  the 
corpus  of  the  water.  The  riparian  proprietor  does  not  own  the 
water.  He  has  the  right  only  to  enjoy  the  advantage  of  a  reason- 
able use  of  the  stream  as  it  flows  by  his  land,  subject  to  a  like  right 
belonging  to  all  other  riparian  proprietors."9  And  a  California 
case  says :  ' '  The  rights  of  a  riparian  owner  ....  do  not  include  a 
proprietorship  in  the  corpus  of  the  water.  His  right  to  the  water 
is  limited  to  its  use,"  etc.10 

This  usufructuary  right,  or  "water-right,"  is  the  substantial 
right  with  regard  to  flowing  waters;  is  the  right  which  is  almost 
invariably  the  subject  matter  over  which  contracts  are  made  and 
litigation  arises.  It  is  not  an  ownership  in  the  water  itself;  it  is 
merely  a  privilege  to  use  the  water,  and  hence  purely  incorporeal.^ 

The  term  "usufruct"  is  taken  from  the  civil  law.12 

(3d  ed.) 

§  690.    When  Taken  into  Possession,  the  Substance  Becomes 

Private  Property. — The  law  of  watercourses  (borrowing  from  the 
civil  lawj  is  but  a  development  of  the  transition  from  nobody's 
property  to  private  property,  by  capture  and  severance  from  the 
natural  stream.  While  naturally  flowing  the  substance  is  in  the 
"negative  community"  and  not  property.  The  right  may  exist  to 
have  its  flow  and  use,  and  to  take  of  it  (called  usufructuary).  Any 
part  taken  is  the  private  property  of  the  taker  while  in  his  posses- 
sion. 

Following  the  particles  of  the  liquid  from  the  stream  into  a 
ditch,  or  other  artificial  structure,  there  then  has  come  a  change 
in  the  "wandering"  (as  Blackstone  says)  of  the  liquid  that  has 
been  taken  into  the  ditch.  It  is  like  the  change  regarding  wild 
birds  caught  in  a  snare,  wild  animals  caged,  fish  caught  in  nets. 
Before  capture,  none  of  these  is  regarded  as  property,  real  or  per- 
sonal ;  being  wandering,  ownerless  things ;  while  wandering  at  large 

8  3  Com.  Marg.,  p.  439.  proprietor  owning   both  banks :  "It  is 

9  Crawford  v.   Hathaway,   67   Neb.  not  his  own  as  to  property,  but  only 
325,  108  Am.  St.  Rep.  647.  93  N.  W.  as  to  the  use  which  he  can  make  of  it 
781,  60  L.  R.  A.  889.  in  its  passage."     Authorities  are  given 

10  Gould  v.  Eaton,  117  Cal.  542,  49       fully  supra,  c.  2. 

Pac.  577,  38  L.  R.  A.  181.     Compare  n   Swift  v.   Goodrich,   70   Cal.   103, 

the  Mexican  law  (Hall's  Mexican  Law,       11   Pac.  561. 

sec.    1392),    speaking    of    a    riparian  12  Supra,  see.   17. 


756  (3d  ed.)    Pt.  TV.    THE  COMMON  LAW  OF  RIPARIAN  RIGHTS.    §  690 

they  are  nobody's  property;  but  after  capture,  they  become  the 
private  property  of  the  taker.  So  with  the  particles  of  watf.r  that 
have  passed  into  private  control  in  a  reservoir,  ditch  or  other  artifi- 
cial structure  or  appliance.  The  particles  have  been  taken  from 
their  natural  haunts,  so  to  speak,  and  passed  into  private  possession 
and  control,  and  become  private  property.13 

This  is  well  recognized  in  the  civil  law,14  and  the  common  law 
is  stated  in  identical  terms.  "None  can  have  any  property  in  the 
water  itself,  except  in  the  particular  portion  which  he  may  choose 
to  abstract  from  the  stream,  and  take  into  his  possession,  and  that 
during  the  time  of  his  possession  only. ' ' 15  And  Blackstone 16 
classes  naturally  running  water  with  "the  very  elements"  of 
fire,  light,  and  air,  and  with  "the  generality  of  those  animals 
which  are  said  to  be  ferae  naturae,  or  of  a  wild  and  un- 
tamable disposition,"  which  may  become  a  man's  property  by  cap- 
ture. As  to  water,  a  man  takes  it  into  his  possession,  Blackstone 
says,  by  his  mills  or  other  conveniences.  The  comparison  to  animals 
ferae  naturae  is  also  made  by  Judge  Field  in  a  passage  elsewhere 
quoted,17  and  the  supreme  court  of  the  United  States  terms  running 
water  a  ' '  mineral  ferae  naturae. ' ' 18  Chancellor  Kent  says : 19  ' '  The 
elements  of  air,  light,  and  water  are  the  subjects  of  qualified  prop- 
erty by  occupancy,"  and  then,  in  the  same  paragraph,  proceeds  to 
the  law  of  wild  animals,  as  based  on  the  same  principle.  Many 
more  authorities  are  elsewhere  given.20 

The  rights  one  can  have  in  naturally  running  water  are  thus  that 
of  having  it  flow  to  him,  and  of  using  it  and  taking  it  into  his 
possession,  thereby  making  private  property  of  a  part  of  it,  during 
the  time  he  holds  it  in  his  possession.  The  theory  is  clearly  put  by 
the  California  court,  saying:  "He  does  not  own  the  corpus  of  the 
water,  but  incident  to  his  riparian  right  is  the  right  to  appropriate 
a  certain  portion  of  it.  It  is  only,  I  think,  by  some  species  of  ap- 
propriation that  one  can  ever  be  said  to  have  title  to  the  corpus 
of  the  water.  The  right  of  the  riparian  owner  is  to  the  continuous 
flow  with  a  usufructuary  right  to  the  water,  provided  he  returns 
it  to  the  stream  above  his  lower  boundary,  and  the  right,  as  I 
have  said,  to  make  a  complete  appropriation  of  some  of  it. " l 

13  Authorities  are  cited  supra,  c.  3.  is  Supra,  sec.  33. 

14  Supra,  sec.  31.  19  Pt.  V,  c.  XXXV,  p.  347. 
is  Baron  Parke  in  Embrey  v.  Owen,           20  Supra,  c.  3. 

6  Ex.  352.  20  L.  J.  Ex.  212.  l  Vernon  Irr.   Co.   v.   Los   Angeles, 

16  Bk.  II,  pp.  14,  395.  106  Cal.  237,  256,  39  Pac.  762. 

17  Supra,  sec.  33. 


§  690  Ch.  29.     THEORY  OF  THE  COMMON  LAW.       (3d  ed.)  757 

It  remains  only  to  be  said  that  this  private  property  in  the  corpus 
of  the  water  severed  from  the  stream  is  based  entirely  on  posses- 
sion and  control  of  the  particles,  and  ceases  when  the  possession 
and  control  cease.  It  is  lost  by  escape  of  the  water  or  its  aban- 
donment; whereupon  the  particles  again  cease  to  be  his  property, 
and  are  again  nobody's  property.2  The  complete  "life  history"  of 
any  specific  particle  of  the  water  as  distinguished  from  a  usufruct 
in  the  stream  is  hence  contained  in  the  following  passage  in  Black- 
stone  : 3 

"But,  after  all,  there  are  some  few  things,  which,  notwithstand- 
ing the  general  introduction  and  continuance  of  property,  must 
still  unavoidably  remain  in  common;  being  such  wherein  nothing 
but  a  usufructuary  property  is  capable  of  being  had;  and,  there- 
fore, they  belong  to  the  first  occupant,  during  the  time  he  holds 
possession  of  them,  and  no  longer.  Such  (among  others)  are  the 
elements  of  light,  air  and  water;  which  a  man  may  occupy  by 
means  of  his  windows,  his  gardens,  his  mills,  and  other  conveniences ; 
such  also,  are  the  generality  of  those  animals  which  are  said  to  be 
ferae  naturae,  or  of  a  wild  and  untamable  disposition,  which  any 
man  may  seize  upon  and  keep  for  his  own  use  or  pleasure.  All 
these  things,  so  long  as  they  remain  in  possession,  every  man  has  a 
right  to  enjoy  without  disturbance;  but  if  once  they  escape  from 
his  custody,  or  he  voluntarily  abandons  the  use  of  them,  they  return 
to  the  common  stock,  and  any  man  else  has  an  equal  right  to  seize 
and  enjoy  them  afterward." 

To  avoid  misunderstanding,  it  must  be  well  noted  that  this  pas- 
sage distinguishes  the  corpus  of  water  from  the  usufructuary  right 
in  the  stream,  and  that  when  Blackstone  here  says  that  every  man 
has  an  equal  right  to  seize  and  enjoy,  he  is  referring  to  the  par- 
ticles or  drops,  which  no  man  can  trace  or  identify  as  having  been 
formerly  in  his  possession,  and  which  consequently,  he  can  lay  no 
claim  to  because  of  such  former  possession.  Instead,  anyone  to 
whom  the  abandoned  particles  come  may  seize  and  use  them  in  the 
same  manner  as  any  other  particles,  and  under  the  same  considera- 
tions as  govern  his  right  to  such  other.  The  escaped  or  abandoned 
particles  pass  under  any  usufruct  that  may  exist  in  the  stream  they 
have  mixed  with,  be  the  owners  of  that  usufruct  who  they  may 
and  without,  for  the  present  purpose,  specifying  who  the  owners 
of  the  usufruct  may  be.  The  statement  applies  only  to  the  corpus 

2  Supra,  sec.  37.  3  Bk.  II,  p.  14. 


758   (3d  ed.)     Pt.  IV.    THE  COMMON  LAW  OF  RIPARIAN  RIGHTS.    §  691 

of  the  water  (the  ownership  of  the  usufruct  we  shall  deal  with 
shortly),  and  shows  how  the  corpus  is  not  property  while  flowing 
naturally,  is  private  property  during  capture,  and  again  ceases  to' 
be  property  when  possession  ceases. 

(3d  ed.) 

§  691.    Systems  of  Water  Law  are  but  a  Development  of  These 

Three  "First  Principles": 

a.  The  running  water  of  natural  streams  is,  as  a  corpus,  the  prop- 
erty of  no  one. 

6.  The  substantial  property  right  recognized  by  the  law  is  the 
usufruct  of  the  stream — the  right  to  the  flow  and  use  of  the  natural 
resource. 

c.  Any  specific  portion  of  the  water  severed  from  the  stream 
and  reduced  to  possession  is  private  property  as  a  corpus  (while  so 
held  in  possession  only).4 

A  much  fuller  statement  of  these  principles  will  be  found  in  the 
first  three  chapters  of  this  book.5 

Systems  of  water  laws  are  but  a  development  of  the  questions, 
who  may  thus  take  of  the  water  and  make  it  his  own,  and  subject  to 
what  limitations.  There  are  several  possible  answers,  with  one  of 
which  we  have  already  dealt.  It  is  the  most  obvious  answer,  namely, 
that  the  substance  being  without  an  owner,  the  first  to  take  it  shall 
have  the  exclusive  right  to  continue  taking  it ;  that  is,  shall  have  not 
only  a  property  in  the  corpus  actually  taken,  but  also  an  exclusive 
property  in  the  usufruct  of  the  stream ;  being  the  answer  of  the  old 
English  cases  and  of  the  modern  Western  law  of  appropriation. 
A  second  answer,  that  of  the  common  law  since  Mason  v.  Hill,  we 
proceed  to  set  forth. 

B.     ACCESS  TO  THE  STREAM. 
(3d  ed.)    • 

§  692.  None  but  Riparian  Proprietors  have  Access  to '  the 
Stream. — At  the  time  the  riparian  right  came  up  for  its  real  set- 
tlement in  Mason  v.  Hill,  the  situation  was  presented  of  this  sub- 
stance, said  to  be  without  an  owner,  flowing  entirely  through  pri- 
vate estates.  In  England  land  has  been  in  private  ownership 
for  centuries.  All  streams,  though  not  themselves  a  thing  that 
could  be  owned,  were  absolutely  inclosed  on  all  sides  by  privately 

4  When  possession  is  again  lost  by  abandonment  or  escape,  see  sec.  37,  supra. 

5  Especially  sec.  63,  supra. 


§  693  Ch.  29.     THEORY  OF  THE  COMMON  LAW.       (3d  ed.)  759 

owned  land.     The  owners  of  the  inclosing  land  hence  alone  had 
access  to  the  water. 

(3d  ed.) 

§  693.  Same. — Having  alone  the  access,  the  riparian  proprie- 
tors alone  have  the  right  to  take  of  the  water.  The  stream  being 
absolutely  inclosed  between  private  estates,  the  common  law  in 
this,  as  in  all  its  branches,  is  zealous  to  protect  those  estates.  It 
is  in  the  protection  of  landed  proprietors  that  the  common  law 
had  its  birth.  Land  has  always  been  a  subject  upon  which  the 
English  common  law  looked  as  of  primary  importance,  one  of  the 
attributes  of  which  is  the  fundamental  right  to  protection  against 
trespass.  All  but  riparian  proprietors  were  thus  shut  out  from  the 
stream,  for  all  others  would  have  to  trespass  on  the  riparian  es- 
tates to  reach  it;  and  the  law  prohibited  the  trespass  for  this  or 
any  other  purpose.  ' '  It  is  quite  impossible  to  contend  that  a  man 
can  obtain  a  title  by  entering  the  close  of  another,  tapping  a  spring 
there,  and  conveying  the  water  away  to  his  own  premises  by  a 
drain. ' ' 6  The  law  of  riparian  rights  grows  out  of  this  exclusion 
of  nonriparian  owners  because  they  have  no  access  to  the  water. 
The  right  of  access  is,  in  the  end,  a  determinative  factor  in  ail 
systems  of  water  law.7 

Lawful  access  was  given  by  the  ownership  of  riparian  land,  and 
being  so  given,  was  equally  afforded  to  all  the  riparian  owners, 
since  all  have  an  equal  right  to  access.8  They  all  consequently  have 
the  same  and -equal  right  to  take  and  use  the  water.  There  is  a 
perfect  equality  of  right  among  all  the  proprietors,  says  Justice 
Story.9  Any  damage  which  one  may  occasion  to  the  equal  privilege 
of  another  must  be  excused,  if  at  all,  only  by  the  reasonable  use 
of  his.  own  (the  riparian)  land  which  gives  the  access,  and  this 
prohibits  nonriparian  use  even  by  a  riparian  proprietor  or  his 
grantee. 

6  Baron  Parke,  in   Cocker  v.   Cow-  stream."     James,   L.    J.,    in   Wilts    & 
per,   5    Tyrw.    103.      See   Mr.   Justice  Berks  Canal  Co.  v.  Swindon  W.  W.  Co., 
Henshaw's  opinion  in  Bolsa  etc.  Club  L.  R.  9  Ch.,  at  p.  457.     "Should  any 
v.  Burdick,  151  Cal.  254,  90  Pac.  532,  other  person   attempt   to   exercise   the 
12  L.  R.  A.,  N.  S.,  275,  quoted  supra,  same  right  without  permission  of  the 
sec.  225.  owner,    he    would    be    a    trespasser." 

7  Cf.,   supra,   sec.   221;    infra,   sec.  Gould  v.  Hudson  etc.  Co.,  6  N.  Y.  542. 
1103  et  seq.     "All  streams  are  publid  8  Infra,  sec.  739. 

juris,  and  all  the  water  flowing  down  »  Tyler  v.  Wilkinson,  4  Mason,  397, 

any  stream  is  for  the  common  use  of       Fed.  Cas.  No.  14,312. 
mankind  who  live  on  the  banks  of  the 


760  (3d  ed.)    Pt.  IV.    THE  COMMON  LAW  OF  RIPAKIAN  RIGHTS.    §  694 

By  contrast  to  the  landed  situation  in  England  at  the  time  of 
Mason  v.  Hill,  the  vast  unoccupied  vacancy  of  the  public  domain 
in  the  Pacific  States  at  the  time  the  pioneers  came  to  California 
is  striking.  The  streams,  instead  of  being  absolutely  inclosed  be- 
tween private  estates,  were  absolutely  open  and  uninclosed.  for  pri- 
vate proprietors  did  not  exist.  Hence  it  was  that  the  California 
court  felt  free  to  depart  from  the  common  law  as  concerned  streams 
on  the  public  domain,  saying  in  the  original  precedent : 10  "It  must 
be  premised  that  it  is  admitted  on  all  sides  that  the  mining  claims 
in  controversy,  and  the  lands  through  which  the  stream  runs,  and 
through  which  the  canal  passes,  are  a  part  of  the  public  domain,  to 
which  there  is  no  claim  of  private  proprietorship."  There  was  free 
access  to  the  streams  to  all.11  And  as  the  inclosing  land  has  become 
private  in  California,  restricting  this  free  access,  the  common  law  of 
riparian  rights  has  there  returned.  (And  even  under  the  Colorado 
doctrine,  as  the  bordering  lands  are  withdrawn  under  the  policy  of 
conservation,  or  by  patent  to  private  settlers,  time  will  inevitably 
produce  a  marked  effect  upon  the  law  of  appropriation  there,  for 
access  to  the  streams  is  a  determining  factor  in  all  systems  of  water 
law.12) 

(3d  ed.) 

§  694.  Same. — No  higher  authority  concerning  the  nature  of 
the  riparian  right  can  be  quoted  than  Baron  Parke  in  Embrey  v. 
Owen 13  (he  had  also  taken  part  in  the  judgment  in  Mason  v. 
Hill),  in  a  passage  classical  upon  the  subject,  placing  the  riparian 
right  as  the  right  to  enjoy  the  fruits  of  the  privilege  (the  usufruct) 
which  his  right  of  access  gives  to  the  riparian  proprietor,  and  there- 
by to  take  into  his  own  possession  and  make  his  private  property 
a  portion  of  what  is  to  be  taken  by  all  having  equally  the  right 
of  access.14 

"The  law  as  to  flowing  water  is  now  put  on  its  right  footing 
by  a  series  of  cases,  beginning  with  that  of  Wright  v.  Howard,15 
followed  by  Mason  v.  Hill,16  and  ending  with  that  of  Wood  v. 

10  Irwin  v.  Phillips,  5  Cal.  140,  63  Droit-  Civile   Francais,   by   Aubrey  & 
Am.  Dec.  113,  15  Morr.  Min.  Rep.  178.  Rau,  4th  ed.,  vol.  Ill,  p.  46. 

11  Note,   also,    that    the    Code    Na-  12  Supra,  sec.  221  et  seq. 
poleon    (quoted    supra")    likewise    ex-           13  6  Ex.  352,  20  L.  J.  Ex.  212. 
cepts  streams  on  the   public   domain.  14  j4.aj:cs 

"The  waters  mentioned  in  articles  644 

and  645  [of  the  Code  Napoleon]  are,  l  Sim-  &  s-  19°- 

to  the  exclusion  of  all  others,  the  nat-  16  3  Barn.  &  Adol.  304,   110   Eng. 

ural    streams    that    do    not   form    de-  Reprint,  114;  5  Barn.  &  Adol.  1,  110 

pendences    of     the     public     domain."  Eng.  Reprint,  692. 


§  695  Ch.  29.     THEORY  OF  THE  COMMON  LAW.       (3d  ed.)  761 

Waud,17  and  is  fully  settled  in  the  American  courts.18  The  right 
to  have  the  stream  flow  in  its  natural  state,  without  diminution  or 
alteration,  is  an  incident  to  the  property  in  the  land  through  which 
it  passes;  but  flowing  water  is  publici  juris,  not  in  the  sense  that 
it  is  a  bonum  vacans,  to  which  the  first  occupant  may  acquire  an 
exclusive  right,  but  that  it  is  public  and  common  in  this  sense  only ; 
that  all  may  reasonably  use  it  who  have  a  right  of  access  to  it; 
that  none  can  have  any  property  in  the  water  itself,  except  in  the 
particular  portion  which  he  may  choose  to  abstract  from  the  stream 
and  take  into  his  possession,  and  that  during  the  time  of  his  pos- 
session only.19  But  each  proprietor  of  the  adjacent  land  has  the 
.right  to  the  usufruct  of  the  stream  which  flows  through  it.  This 
right  to  the  benefit  and  advantage  of  the  water  flowing  past  his  land 
is  not  an  absolute  and  exclusive  right  to  the  flow  of  all  the  water  in 
its  natural  state.  If  it  were,  the  argument  of  the  learned  counsel, 
that  every  abstraction  of  it  would  give  a  cause  of  action,  would  be 
irrefragable ;  but  it  is  a  right  only  to  the  flow  of  the  water,  and  the 
enjoyment  of  it,  subject  to  the  similar  rights,  of  all  the  proprietors 
of  the  bank  on  each  side  to  the  reasonable  enjoyment  of  the  same 
gift  of  Providence.  It  is  only,  therefore,  for  an  unreasonable  and 
unauthorized  use  of  this  common  benefit  that  an  action  will  lie; 
for  such  a  use  it  will." 

Likewise  it  is  said  in  another  leading  case  that  in  the  case  of  a 
grant  of  land  on  a  stream,  "the  grantee  obtains  a  right  of  access 
to  the  river,  and  it  is  by  virtue  of  that  right  of  access  that  he  ob- 
tains his  water-rights."20  And  in  Lyon  v.  Fishmongers'  Com- 
pany21 Lord  Selborne  said  the  water  "can  only  be  appropriated  by 
severance,  and  which  may  be  lawfully  so  appropriated  by  everyone 
having  a  right  of  access  to  it."22 

This  is  the  same  as  the  civil  law  above  quoted. 

(3d  ed.) 

§  695.     Same. — Since  the.    foregoing    appeared  in  the    second 

edition  of  this  book  it  has  been  explicitly  adopted  in  California 
cases.  For  example,  "All  parties  having  access  to  it  would  have 
the  right  to  reasonably  use  it";  and  again,  in  the  same  case:  "This 
right  arises  from  the  fact  that  the  water  is  then  in  his  land,  so 

17  3  Ex.  748.  20  Stockport  W.  -W.  Co.  v.  Potter, 

18  Citing   3    Kent's    Commentaries,  3  Hurl.  &  C.  300,  10  Jur.,  N.  S.,  1005. 
439,  445.  21  L-  B-  1  APP-  Cas-  673- 

19  Citing  Mason  v.  Hill,  5  Barn.  &  22  Quoted  at  length,  infra,  sec.  698. 
Adol.  24,  110  Eng.  Reprint,  692. 


762   (3d  ed.)     Pt.  IV.    THE  COMMON  LAW  OF  RIPAEIAN  EIGHTS.    §  695 


that  he  may  take  it  without  trespassing  upon  his  neighbor.  His 
ownership  of  the  land  carries  with  it  all  the  natural  advantages 
of  its  situation,  and  the  right  to  a  reasonable  use  of  the  land  and 
everything  it  contains,'  limited  only  by  the  operation  of  the  maxim 
'Sic  utere  tuo  ut  alienum  non  laedas.'  It  is  upon  this  principle 
that  the  law  of  riparian  rights  is  founded,"  etc.  Adding  that 
such  waters  "should  be  considered  a  common  supply,  in  which  all 
who  ~by  their  natural  situation  have  access  to  it  have  a  common 
right,"  etc.23 

It  is  a  matter  stated  in  many  authorities.24 


23  Hudson  v.  Dailey,  156  Cal.  617, 
105  Pac.  748,  per  Mr.  Justice  Shaw. 

24  That   the    riparian   right   to   the 
use  of  a  watercourse  arises  out  of  the 
exclusion    of    nonriparian    owners   be- 
cause  their   lands   have   no    access   to 
the  stream  is  more  or  less  involved  in 
the    following     authorities:     Lyon    v. 
Fishmongers'  Co.,  L.  E.  1  App.  Gas. 
673;  Embrey  v.  Owen,  6  Ex.  352,  20 
L;  J.   Ex.   212;    Cocker  v.   Cowper,   5 
Tyrw.  103 ;  Eace  v.  Ward,  4  El.  &  Bl. 
710;    Stockport   W.    W.   v.   Potter,   3 
Hurl.  &  C.  300,  10  Jur.,  N.  S.,  1005; 
Lord  v.   Commissioners,   12   Moore  P. 
C.  473,  14  Eng.  Eeprint,  991;   North 
Shore  Ey.  Co.  v.  Pion,  L.  E.  14  App. 
Cas.  612;   McCartney  v.  Londonderry 
etc.    Ey.   Co.    [1904],   App.    Cas.    301 
(per  Lord  Macnaughten)  ;  Nelson,  J., 
in  Howard  v.  Ingersoll,  13   How.  (U. 
S.)   426,  14  L.  Ed.  209;   Haupt's  Ap- 
peal, 125  Pa.  211,  17  Atl.  436,  3  L.  E. 
A.  536;   Gould  v.  Hudson  etc.  Co.,  6 
N.  Y.   542;    Lux  v.   Haggin,   69   Cal. 
255,   at   333   and   413,    10   Pac.    674; 
Heilbron  v.   Fowler   etc.   Co.,   75   Cal. 
426,  7  Am.  St.  Eep.  183,  17  Pac.  535; 
Lembeck  v.  Nye,  47  Ohio  St.  336,  21 
Am.   St.  Eep.  828,  at  836,   24  N.  E. 
686,  8  L.  E.  A.  578;  City  of  Paterson 
v.  East  Jersey  W.  Co.,  74  N.  J.   Eq. 
49,    70   Atl.   472;    Bingham   Bros.    v. 
Port  Arthur  etc.  Co.  (Tex.  Civ.  App.), 
91  S.  W.  848,  100  Tex.  192,  97  S.  W. 
686,   13  L.  E.  A.,  N.  S.,  656;   Lewis 
on  Eminent  Domain,  sees.  78-82 ;  and 
especially   sec.    83 ;     Burr    v.    Maclay 
Eancho,    154   Cal.    428,   98    Pac.    260; 
Turner  v.  James  Canal  Co.,   155  Cal. 
82,  132  Am.  St.  Eep.  59,  99  Pac.  520, 
22  L.  E.  A.,  N.  S.,  401,  17  Ann.  Cas. 
823;   Hudson  v.  Dailey,  156  Cal.  617, 
105  Pac.  748;  Bolsa  etc.  Club  v.  Bur- 


dick,  151  Cal.  254,  90  Pac.  532,  12 
L.  E.  A.,  N.  S.,  275. 

In  Haupt's  Appeal,  125  Pa.  211,  17 
Atl.  436,  it  is  said:  "In  the  case  of 
a  river  or  public  highway,  all  the 
people  of  the  State  have  access  to  it, 
may  ride  over  it,  and  use  the  water. 
Not  so  a  private  river.  In  such  a  case 
no  one  can  use  it  or  take  the  water 
except  at  a  public  crossing.  There 
the  traveler  may  stop,  refresh  himself, 
and  water  his  horse.  The  water  has 
no  owner,  and  he  impairs  no  man's 
right.  But  except  at  public  crossings, 
such  as  a  road  or  a  street,  no  one  but 
a  riparian  owner  can  use  the  water, 
not  because  the  latter  has  any  owner- 
ship in  it,  but  because  the  stranger 
has  no  right  of  access  to  it.  There 
can  be  no  such  thing  as  ownership  in 
flowing  water.  The  riparian  owner 
may  use  it  as  it  flows.  He  may  dip  it 
up  and  become  the  owner  by  confining 
it  in  barrels  or  tanks;  but  so  long  as 
it  flows  it  is  as  free  to  all  as  the  light 
and  the  air.  It  follows  from  what 
has  been  said  that  dwellers  in  towns 
and  villages  watered  by  a  stream  may 
use  the  water  as  well  as  the  riparian 
owner,  provided  they  have  access  to 
the  stream  by  means  of  a  public  high- 
way" (and  it  seems  proper  to  add,  do 
no  present  or  prospective  damage  to 
the  riparian  proprietor). 

After  discussing  the  meaning  of 
"publici  juris,"  one  well-known  case 
says:  "Its  use,  for  instance,  in  pro- 
pelling machinery,  cannot  be  obtained 
by  any  person,  but  one  who  owns  the 
land  which  the  water  covers,  or  which 
forms  its  banks,  or  by  one  to  whom 
such  proprietor  grants  it;  because  it 
is  physically  impossible  to  get  the 
water  in  any  other  way."  Pugh  v. 


§696 


Ch.  29.     THEORY  OP  THE  COMMON  LAW.       (3d  ed.)  763 


C.     THE   RIPARIAN   RIGHT    DOES    NOT    REST    UPON    THE   MAXIM 

CUJUS   EST    SOLUM. 
(3d  ed.) 

§  696.  The  Cujus  est  Solum  Doctrine. — Resting  on  high  au- 
thority, as  the  foregoing  basis  of  the  doctrine  does,  and  harmonizing 
with  the  decisions  historically  considered,  there  is  yet  a  different 
basis  frequently  ascribed  to  the  doctrine.  This  other  founds  the 
doctrine  not  on  the  principle  that  flowing  waters  as  a  substance 
belong  to  no  one  until  actually  taken  by  those  having  the  right  of 
access,  but  on  the  contrary  principle,  that  the  riparian  proprietor 
has  actual  ownership  in  the  stream  as  part  of  his  estate  under^t&e 
maxim,  "Cujus  est  solum  ejus  est  usque  ad  caelum."  The  term 
"land"  does  not  include  running  water  under  the  former  doctrine; 
whereas,  under  the  latter,  the  stream  is  an  owned  corpus,  as  part  of 
the  land. 

A  rule  of  the  common  law  long  established  that  "land"  compre- 
hends all  that  rests  upon  it,  including  the  trees  and  stones  and 
waters.  The  classical  statement  of  this  is  the  following  passage 
from  Lord  Coke:  "Land  in  legal  signification  comprehendeth  any 
ground,  soil  or  earth  whatsoever,  as  meadows,  pastures,  woods, 


Wheeler,  2  Dev.  &  B.  (N.  C.)  50  (cit- 
ing Mason  v.  Hill),  Ruffin,  C.  J. 

Another  important  case  says: 
"While  it  remains  in  the  field  where  it 
issues  forth,  in  the  absence  of  any 
servitude  or  custom  giving  a  right  to 
others,  the  owner  of  the  field,  and  he 
only,  has  a  right  to  appropriate  it; 
for  no  one  else  can  do  so  without 
committing  a  trespass  upon  the  field; 
but  when  it  has  left  his  field,  he  has 
no  more  power  over  it,  or  interest  in 
it,  than  any  other  stranger."  Lord 
Campbell,  C.  J.,  in  Race  v.  Ward,  4 
El.  &  Bl.  710. 

"No  proprietor  has  a  right  to  use 
the  water  to  the  prejudice  of  other 
proprietors,  above  or  below,  unless  he 
has  acquired  a  prior  right  to  divert  it. 
[Evidently  referring  to  prescription.] 
He  has  no  property  in  the  water  itself 
~but  a  simple  usufruct  while  it  passes 
along.  Anyone  may  reasonably  use  it 
who  has  a  right  of  access  to  it;  but 
no  one  can  set  up  a  claim  to  an  ex- 
clusive right  to  the  flow  of  all  the 
water  in  its  natural  state,  and  that 
what  he  may  not  wish  to  use  himself 
shall  flow  on  till  lost  in  the  ocean." 
Nelson,  J.,  in  Howard  v.  Ingersoll,  13 
How.  426,  14  L.  Ed.  209. 


"It  comes  from  the  situation  of  the 
land  with  respect  to  the  water,  the 
opportunity  afforded  thereby  to  divert 
and  use  the  water  upon  the  land,  the 
natural  advantages  and  benefits  re- 
sulting from  the  relative  positions, 
and  the  presumption  that  the  owner 
of  the  land  acquired  it  with  a  view 
to  the  use  and  enjoyment  of  these  op- 
portunities, advantages  and  benefits." 
Turner  v.  James  Canal  Co.,  155  Cal. 
82,  132  Am.  St.  Rep.  59,  99  Pac.  520, 
22  L.  R.  A.,  N.  S.,  401,  17  Ann.  Gas. 
823. 

Under  the  Scotch  law,  "The  rights 
of  parties  in  private  streams  of  water 
depend  upon  their  relative  situations." 
Ferguson  on  the  Law  of  Water  in 
Scotland,  p.  199.  Under  the  Mexican 
law,  "the  waters  of  innavigable  riv- 
ers, while  they  continued  such,  were 
subject  to  the  common  use  of  all  who 
could  legally  gain  access  to  them  for 
purposes  necessary  to  the  support  of 
life."  Lux  v.  Haggin,  69  Cal.  255, 
•  10  Pac.  674. 

As  to  navigable  streams  a  Califor- 
nia case  says:  "But  as  these  so-called 
navigable  waters  are  wholly  sur- 
rounded by  the  lands  of  plaintiff,  and 
as  it  is  not  asserted,  and  indeed 


764  (3d  ed.)    Pt.  IV.    THE  COMMON  LAW  OF  EIPABIAN  EIGHTS.    §  696 

moors,  waters,  marshes,  furses  and  heath,"25  discussing  the  meaning 
of  "land,"  adding  in  the  same  note:  "Also  the  waters  that  yield 
fish  for  the  food  and  sustenance  of  man  are  not  by  that  name 
demandable  in  a  praecipe;  but  the.  land  whereupon  the  water 
floweth  or  standeth  is  demandable,  as,  for  example,  viginti  acras 
terrae  aqua  coopertas.  And  lastly  the  earth  hath  in  law  a  great 
extent  upward,  not  only  of  water,  as  hath  been  said,  but  of  acre 
and  all  things  even  up  to  heaven;  for  cujus  est  solum  ejus  est 
usque  ad  caelum,  as  is  holden  in  14  Hen.  8,  f  o.  12 ;  22  Hen.  6,  59 ; 
lOEdw.  4,  14.  "* 

But  this  is  all  that  can  be  found  upon  the  subject  of  waters  ir 
Lord  Coke,  and  nothing  applying  it  to  the  use  of  waters  or  at  all 
touching  riparian  rights  can  be  found.  The  application  of  that 
principle  to  the  rights  of  riparian  proprietors  is  usually,  though 
erroneously,  ascribed  to  Justice  Story  in  Tyler  v.  Wilkinson,  say- 
ing: "Prima  facie  every  proprietor  upon  each  bank  of  a  river  is 
entitled  to  the  land,  covered  with  water,  in  front  of  his  bank,  to 
the  middle  thread  of  the  stream,  or,  as  it  is  commonly  expressed, 
usque  ad  medium  filum  aquae.  In  virtue  of  this  ownership  he 
has  a  right  to  the  use  of  the  water  flowing  over  it  in  its  natural 
current,  without  diminution  or  obstruction.  But,  strictly  speak- 
ing, he  has  no  property  in  the  water  itself,  but  a  simple  use  of  it 
while  it  passes  along."2 

This  statement  by  Story,  it  is  pointed  out  by  Mr.  Yale,3  is  but  a 
restatement  of  the  then  recent  English  case  of  Wright  v.  Howard,4 
where  the  words  used  were,  "Prima  facie,  the  proprietor  of  each 
bank  of  a  stream  is  the  proprietor  of  half  the  land  covered  by  the 
stream,  but  there  is  no  property  in  the  water."  This,  instead  of 
identifying  ownership  of  the  bed  and  of  the  water,  is,  on  the  con- 
trary, put  for  the  purpose  of  denying  such  doctrine ;  meaning  that 
one  cannot  claim  ownership  in  the  substance  merely  because  he 
owns  the  bed;  that  the  right  is  independent  of  title  to  the  bed  of 

it  would  require  much  rashness  and  1  See  Blackstone's  comments  on 
temerity  to  assert,  that  the  public  this  passage  in  2  Blackstone's  Corn- 
has  a  right  to  invade  and  cross  private  mentaries,  18. 

lands    to    reach    navigable    waters,    a  2  Tyler  v.  Wilkinson,  4  Mason,  397, 

lawful  mode  of  ingress  and  approach  Fed.    Cas.    No.    14,312.     Italics    ours, 

to  these  navigable  waters  became  nee-  3  Yale  on  Mining  Claims  and  Water 

essary."     Mr.    Justice     Henshaw,    in  Eights,  p.  217. 

Bolsa  etc.  Co.  v.  Burdick,  151  Cal.  254,  4  i  Sim.  &  S.  203,  57  Eng.  Eeprint, 

90  Pac.  532.  79. 

25  Coke    on    Littleton,    lib.    cap.    1, 
sees.  1,  4a.     Italics  ours. 


§  696  Ch.  29.     THEOEY  OF  THE  COMMON  LAW.       (3d  ed.)  765 

the  stream  and  not  concerned  therewith;  and  a  denial  that  the 
right  to  the  water  rested  on  ownership  of  the  bed.  In  Mason  v. 
Hill,  holding  the  water  not  to  be  property  at  all,  this  case 
is  referred  to  as  "a  luminous  judgment."  In  Webb  v.  Portland 
Cement  Co.5  Justice  Story  himself  says  that  his  remarks  in  Tyler 
v.  Wilkinson  were  taken  from  Wright  v.  Howard,  and  says  "the 
right  of  a  riparian  proprietor  arises  by  mere  operation  of  law,  as 
an  incident  to  his  ownership  of  the  frcwfe."  From  this  history  of 
Story's  words,  as  well  as  the  intrinsic  evidence  of  his  passage  itself, 
it  has  clearly  been  misinterpreted  when  .taken  as  the  foundation 
6"f  the  doctrine  that  the  riparian  right  arises  from  ownership  of 
the  land  over  which  the  water  flows,  by  an  application  of  the  ' '  cujus 
est  solum"  doctrine.  Story's  words  were  quoted  on  argument  in 
an  early  English  Privy  Council  case.  The  following  is  the  com- 
ment thereon  in  the  decision:  "The  argument  in  opposition  to  this 
[claim  as  riparian  proprietor],  was,  that  in  respect  to  water-rights, 
a  riparian  owner  was  only  one  who  was  also  the  owner  of  the  soil 
ad  medium  filum  aquae.  Their  Lordships  do  not  think  it  neces- 
sary to  express  any  opinion  on  the  first  step  in  this  argument 
[holding  that  title  in  the  case  did  extend  to  the  middle  of  the  stream 
on  the  facts].  They  desire'  only  that  it  may  not  be  taken  for 
granted  that  they  accede  to  it.  It  is  a  question  of  some  nicety,  and 
it  so  constantly  happens  that  the  owner  of  the  bank  is  also  the 
owner  of  the  land  ad  medium  filum.,  that  it  is  dangerous  to  attribute 
too  much  importance  to  the  language  either  of  judicial  decisions 
or  text-books,  which  seem  to  define  the  right  where  the  foundation 
of  it  has  not  been  specifically  in  question. ' ' 6 

5  3  Sum.  189,  Fed.  Cas.  No.  17,322.  Webb  v.  Portland  Cement  Co.,  supra. 

6  Lord  v.  Commissioners,  of  Sydney,  See,  also,  Moulton  v.  Newburyport  Co., 
12  Moore  P.  C.  473,  14  Eng.  Reprint,  137  Mass.  163,  holding  that  riparian 
991.     In  Angell  on  Watercourses,  7th  owners  do  not  own  one-half  each,  of 
ed.,  section  5  (italics  ours),  it  is  said:  the  water,  by  sides.]     This  has  been 
"The  right  of  private  property  in   a  frequently,  if  not  uniformly,  adopted 
watercourse  is  derived  as  a  corporeal  as  the  established  rule.     It  is  derived 
right    or    hereditament,    from,    or    is  mainly  from  the  rule  that  the  riparian 
embraced  by,  the  ownership  of  the  soil  proprietor  is  owner  of  the  soil  under 

over  which  it  naturally  passes the  water,  and  by  the  general  law  of 

A    stream    of   water   is    therefore    as  property  becomes  entitled  as  of  right 

much  the  property  of  the  owner  of  the  to  all  accessions."     (Id.  8.)     The  cor- 

soil  over  which  it  passes  as  the  stones  pus  of  the  water  is  here  regarded  as 

scattered  over  it."     And  in  a  note  it  property,  the  particles  being  regarded 

is   said:    "That    a   river,    of    common  as  accessions,  in  conflict  with  the  usu- 

right,   belongs   to    the   proprietors   of  fructuary  principle,  which  denies  that 

the    land    between   which   it    runs,    to  the    naturally    flowing     particles     are, 

each  that  part  nearest  his  land.     [Ex-  property   in   any   sense   of   the   word, 

pressly    denied    by    Justice    Story    in  See,  also,  Woolrych  on  Waters,   146: 


766  (3ded.)    Pt.  IV.    THE  COMMON  LAW  OF  RIPARIAN  EIGHTS.    §697 

The  application  of  the  cujus  est  solum  doctrine  to  running  waters 
and  natural  streams  is  frequently  made  in  cases  to-day;  for  ex- 
ample, "Such  water  [flowing  water]  in  its  natural  state,  so  far  as 
respects  private  ownership  thereof,  is  not  personal  but  real  prop- 
erty, being  as  much  a  part  of  the  land  itself  as  the  soil  and  rocks. 
In  this  aspect  it  is  viewed  by  the  common  law,  which  holds  that  he 
who  owns  the  soil  owns  all  above  it  and  all  -beneath  it. "  7 

(3d  ed.) 

§  697.     This  idea  that  the  right  arises  from  ownership  of  the 

water  as  a  part  of  the  land  beneath  the  water  is  engrafted  upon 
the  principle  that  the  right  to  flowing  water  is  only  usufructuary, 
a  principle  resulting  only  from  the  view  taken,  not  from  the 
common-law  maxim,  but  from  the  civil  law  (as  first  set  forth),  that 
running  waters  are  not  property  at  all  while  flowing  naturally — 
a  civil-law  principle  so  pervading  all  the  modern  authorities  that 
it  was,  at  the  same  time,  regarded  as  one  to  be  accepted  without 
examination,  as  a  matter  of  course.  A  compromise  between  these 
incompatible  statements  that  the  substance  is  property  and  not 
property  at  one  and  the  same  time,  is  attempted  by  some  writers, 
but  has  never  been  widely  accepted.  For  example,  Vinnius,  a 
civil-law  writer:  "And  he  (Vinnius)  proceeds  to  distinguish  be- 
tween a  river  and  its  water — the  former  being,  as  it  were,  a  per- 
petual body,  and  under  the  dominion  of  those  in  whose  territories 
it  is  contained ;  the  latter  being  continually  changing,  and  incapable, 
while  it  is  there,  of  becoming  the'  subject  of  property,  like  the  air 
and  sea. "  8  In  an  old  case 9  this  idea  of  the  watercourse  as  an 
entity  distinguished  from  its  waters,  seems  to  appear  in  the  ex- 

"If   the   water  flow   over   the   party's  property   in  any   sense    of   the   word, 

own  land,  although  indeed   it  cannot  On  appeal  of  the  New  Jersey  case  to 

be  claimed  as  water,  yet  it  is  in  effect  the    supreme    court    of     the     United 

identified  with  the   realty,   because  it  States    in    affirming    the    decision    on 

passes    over    the   soil,    and    cujus    est  other  grounds  (Hudson  W.  Co.  v.  Mc- 

solum    ejus    est    usque    ad    caelum,"  Carter,  209  U.  S.  349,  28  Sup.  Ct.'Rep 

openly  resting  riparian  rights  upon  the  529,  52  L.  Ed.  828,  12  Ann.  Cas.  560), 

percolating  water  maxim.  Mr.  Justice    Holmes    spoke    disparag- 

7  McCarter  v.  Hudson  etc.  Co.,   70  ingly  of    the  reasoning  of  the  State 

N.  J.  Eq.  685,  118  Am.  St.  Rep.  754,  court.     As    to    the    California    ease, 

65  Atl.  489,  10  Ann.  Cas.  116.     (See,  see  Leavitt   v.   Lassen  Irr.   Co.,   157 

also,   Stanislaus   W.   Co.   v.   Bachman  Cal.  82,  106  Pac.  404. 

(1908),  152  Cal.  716,  93  Pac.  858,  15  8  Lord  Denman  in   Mason  v.   Hill, 

L.  R.  A.,  N.  S.,  359.)  5  Barn.  &  Adol.  1,  110  Eng.  Reprint, 

The    error    is    manifest,    assuming  692. 

that  it  must  be  real  or  personal,  when  »  Shury   v.    Pigott,    Poph.    169,    79 

the   law   says   it   is   neither,   and   not  Eng.  Reprint,  1263. 


§  698  Ch.  29.     THEORY  OF  THE  COMMON  LAW.       (3d  ed.)  767 

pressions  used:  "The  watercourse  is  a  thing  natural"  (as  distin- 
guished from  the  right  of  way,  which  rests  on  the  agreement  of 
men)  and  "hath  its  being  from  creation."  One  writer  says:10 
"The  stream,  viewed  in  this  light,  apart  from  the  water  which  con- 
stitutes it,n  is  simultaneously  a  feature  of  every  man's  land 
through  which  it  passes."  But  the  river  as  distinguished  from  its 
waters  is  but  a  form  or  mental  picture,  and  not,  taking  away  its 
waters,  a  substance  at  all;  hence  it  affords  nothing  on  which  to 
apply  the  "cujus  est  solum"  doctrine,  nor  have  the  courts  attempted 
to  rest  the  cujus  est  solum  doctrine  as  applied  to  flowing  streams, 
upon  this  metaphysical  compromise.  They  rest  it  on  the  asser- 
tion that  the  water  itself  is  property  as  a  part  of  the  soil  over 
which  it  flows,  like  the  trees  and  stones. 

(3d  ed.) 

§  698.     Same. — This  principle  now  under    consideration,  that 

the  riparian  right  is  deduced  from  the  maxim  " cujus  est  solum," 
is  contrary  to  the  history  of  the  subject,  and  is,  upon  the  leading 
authority  following,  not  the  law.  And  on  principle  it  seems  that 
it  could  not  be  the  law,  for  in  one  breath  it  asserts  ownership 
in  the  water  as  part  of  the  land,  and  in  the  next  denies  that 
naturally  flowing  water  can  be  owned,  or  that  the  riparian  pro- 
prietor has  more  than  a  merely  usufructuary  right.  The  cujus 
est  solum  statement  rests  on  ownership  of  a  substance,  tangible, 
ownership  of  matter,  a  corpus  lying  upon  the  land;  the  usufruct 
statement  denies  ownership  of  the  water  as  a  substance;  the  two 
are  contradictory.  It  is  "founded  on  a  mistake  between  the  prop- 
erty in  the  water  itself  and  the  right  to  have  its  continual  flow. ' ' 12 
That  the  cujus  est  solum  doctrine  is  not  the  foundation  of  the 
riparian  right  is  recognized  by  the  recently  reopened  discussion 
over  percolating  water,  which  has  hitherto  rested  on  that  cujus  est 
solum  maxim.  The  wide  difference  in  watercourses  on  the  one 
hand  and  the  old  law  of  percolating  waters  on  the  other  is  that  which 
results  from  applying  the  cujus  est  solum  doctrii>e  to  percolating 
water  and  not  to  running  streams.  The  application  of  the  cujus 
est  solum  doctrine  even  to  percolating  water  is  now  being  cut 
down.13  At  all  events,  the  application  of  the  cujus  est  solum  doc- 

10  Phear's  Rights  of  Waters,  p.  22.  13  Katz    v.    Walkinshaw,    141    Cal. 

11  Italics  ours.  116,  99  Am.  St.  Rep.  35,  70  Pac.  663, 

12  Lord       Wensleydale           (Baron  74  Pac.  766,  64  L.  R.  A.  236.     Infra, 
Parke),  in  Chasemore  v.  Richards,   7  sec.  1041  et  seq. 

H.  L.  Cas.  349,  11  Eng.  Reprint,  140. 


768  (3d  ed.)    Pt.  IV.    THE  COMMON  LAW  OF  RIPARIAN  RIGHTS.    §  698 

trine  to  percolating  water  in  Acton  v.  Blundell 14  is  not  only  to-day 
recognized  as  a  departure  from  the  rule  regarding  watercourses, 
but  that  departure  was  avowedly  and  consciously  made;  and  that 
it  was  a  departure  has  never  been  denied.15  "There  is  only  one 
case  in  law  in  which  water  in  its  natural  state  is  the  subject  of 
ownership,  and  that  is  the  case  of  percolating  water.  A  man  is 
regarded  as  owning  the  percolating  water  while  it  is  in  his  land. 
But  other  water  in  its  natural  state  is  subject  only  to  the  use  of  the 
man  through  whose  land  it  flows.  He  has  a  right  to  its  use,  but  is 
not  regarded  as  having  the  title."  16 

Moreover,  the  passage  in  Lord  Coke  mentions  air  as  part  of  the 
land  as  much  as  water;  yet  no  man  to-day  would  deduce  a  right 
to  the  wind  from  ownership  of  the  air  as  part  of  the  land  over 
which  the  air  lies.17  Also,  with  regard  to  the  same  passage,  it  is 
common  knowledge  to-day  that  a  riparian  proprietor  does  not  sue  to 
recover  so  much  land  covered  with  water  that  is  running  (in  con- 
trast to  standing  water).  Justice  Story  said  the  riparian  right 
"is  not  a  distinct  right  to  the  water  as  terra  aqua  cooperta."13 

That  on  high  authority  the  view  under  consideration  is  erroneous, 
appears  from  the  decision  of  the  House  of  Lords  in  Lyon  v.  Fish- 
mongers' Company.19  The  case  is  a  direct  decision  upon  the  ques- 
tion. Whether  the  riparian  right  of  use  is  based  on  ownership  of 

14  12  Mees.  &  W.  324.  ing  out  into  space,  in  diverging  lines, 

15  See  quotation  infra,  sec.  1039.  infinitely;    so   that  if   he   could   show 

16  Goodwin  on  Real  Property,  p.  2.       *Jat  the^e,lines  of1  boundary  take  in 

,  v>         ,  Mars  and  her  canals,  he  would  have  a 

17  "So,  though  no  one  will  pretend  perfect  case  against  the  Martians  for 
to  fix  a  property  in  the  wind,  yet  we  rent  of  fields  and  toll  of  waterways, 
may  appoint  a  service  or  duty  of  not  if  he  could  get  serviee  and  bri       the 
intercepting  the  wind  to  the  prejudice  defendants  into  court."     However,  in 
of  our  mills."     Puffendorf,  lib.  IV,  c.  view  of  the  holding  of  Lord  Ellenbor- 
V,  sec.  II.  OUgh  in  Pickering  v.  Rudd,  4  Camp, 

The  absurdity  of  pressing  the  cujus  219,    1   Stark,   56    (see,  also,  44  Am. 

est   solum    doctrine     ad    extremes     is  Law  Rev.   108),  that  trespass  quaere 

shown  in  this  regard;  and  it  has  been  clausum  will  not  lie  for  flying  in  the 

in  this  connection  cleverly  exploited  in  air  over  one's  field  in  a  balloon,  it  is 

fiction,   as,   for   example:    "Cujus   est  safe  to  say  that  there  are  some  limits 

solum,   ejus  est  usque   ad  caelum,   is  to  the   cujus  est  solum  doctrine   this 

the   maxim   on   which   we   stand,    the  side  of  Mars.     It  is  a  curious  thing 

meaning  of  which  has  been  decided  in  that  while  as  to  percolating  water  the 

hundreds    of    cases,    and,    strange    to  maxim  resulted  in  permitting  all  di- 

say,  is  still  clear — he  who  owns  land  version,  its  advocates  as  to  the  streams 

owns    to   the   sky.     He   has   as   much  held  that  it  just  as  absolutely  prohib- 

moral  right  to  the  sky  as  to  the  sur-  ited  any  diversion,  even  by  a  riparian 

face.     The    man    with    a    deed    to    a  owner  for  his  own  riparian  use. 

square    mile    of    the    surface    of    this  18  Slack  v.  Walcott,  3  Mason,  508, 

planet   owns   a   great   pyramid,  apex-  Fed.  Gas.  No.  12,932. 

ing  at  the  earth's  center  and  extend-  19  L.  R.  1  App.  Gas.  673. 


§  698  Ch.  29.     THEORY  OF  THE  COMMON  LAW.       (3d  ed.)  769 

the  soil  upon  which  the  water  rests  or  over  which  it  flows  was  the 
very  point  at  issue.  The  river  in  suit  being  a  navigable  one,  title 
to  the  bed  was  in  the  crown,  and  if  the  riparian  right  of  use  de- 
pended on  the  cujus  est  solum  doctrine,  the  riparian  proprietor, 
who  owned  none  of  the  bed,  would  have  no  riparian  right  of  use. 
The  following  passages  are  taken  from  the  opinions  of  the  lords  in 
that  case.20 

Lord  Cairns,  Chancellor:  "The  Lord  Justice  suggests  that  the 
right  of  a  riparian  owner  in  a  non-navigable  river  arises  from  his 
being  the  owner  of  the  land  to  the  center  of  the  stream,  whereas 
in  a  navigable  river  the  soil  is  in  the  Crown.  As  to  this,  it  may 
be  observed  that  the  soil  of  a  navigable  river  may,  as  Lord  Hale 
observes,  be  private  property.  But  putting  this  aside,  I  cannot 
admit  that  the  right  of  a  riparian  owner  to  the  use  of  the  stream 
depends  on  the  ownership  of  the  soil  of  the  stream." 

Lord  Selborne:  "With  respect  to  the  ownership  of  the  bed  of 
the  river,  this  cannot  be  the  natural  foundation  of  riparian  rights 
properly  so-called,  because  the  word  'riparian'  is  relative  to  the 

bank,  and  not  the  bed,  of  the  stream The  title  to  the  soil 

constituting  the  bed  of  a  river  does  not  carry  with  it  any  exclusive 
right  of  property  in  the  running  water  of  the  stream,  which  can 
only  be  appropriated  by  severance,  and  which  may  be  lawfully 
so  appropriated  by  everyone  having  a  right  of  access  to  it.  It  is, 
of  course,  necessary  to  the  existence  of  a  riparian  right  that  the 
land  should  be  in  contact  with  the  flow  of  the  stream;  but  lateral 
contact  is  as  good,  jure  naturae,  as  vertical ;  and  not  only  the  word 
'riparian'  but  the  best  authorities,  such  as  Miner  v.  Gilmour,21  and 
the  passage  which  one  of  your  Lordships  has  read  from  Lord 
Wensleydale 's  judgment  in  Chasemore  v.  Richards,22  state  the  doc- 
trine in  terms  which  point  to  lateral  contact  rather  than  vertical."  ^ 
In  another  case  (in  the  Privy  Council)  holding  that  there  is  no  dis- 
tinction between  riparian  rights  on  navigable  and  non-navigable 
rivers,24  referring  to  the  distinction  "that  in  the  case  of  a  non- 
navigable  river  the  riparian  owner  is  proprietor  of  the  bed  of  the 

20  Italics  ours.    .  from  maintaining  an  embankment  en- 

21  12  Moore  P.  C.  131,  14  Eng.  Re-  tirely    diverting    the    river    from    the 
print,  861.  back    of     plaintiff's     building,    where 

22  7   H.  L.   Cas.  349,   11   Eng.  Re-  plaintiff  moored  barges  for  handling 
print,   140.  goods. 

23  A    decree    to    the    contrary    held  24  North  Shore  Ry.  v.  Pion,  L.  R. 
reversed  and  defendant  was  enjoined  14  App.  Cas.  612,  at  621. 

Water  Rights — 49 


770  (3d  ed.)    Pt.  IV.    THE  COMMON  LAW  OF  RIPARIAN  EIGHTS.    §  698 

river  ad  medium  filum  aquae,  which,  in  the  case  of  a  navigable  river 
such  as  the  St.  Charles,  belongs  to  the  Crown,"  it  was  said:  "The 
same  distinction  was  contended  for  in  Lyon  v.  Fishmongers'  Com- 
pany, but  the  House  of  Lords,  on  grounds  with  which  their  Lord- 
ships concur,  thought  it  immaterial.  Lord  Cairns  rejected  the 
proposition  that  the  right  of  a  riparian  owner  to  the  use  of  the 
stream  depends  on  the  ownership  of  the  soil  of  the  stream." 

The  Lyon  case  is  accepted  in  Lux  v.  Haggin.25 

In  a  recent  case  in  the  House  of  Lords,  a  claim  was  made  to 
ownership  of  all  the  water  of  a  river  as  a  substance,  and  it  was 
said:  "This  proposition  is,  of  course,  opposed  to  elementary  ideas 
about  the  water  of  a  river,  for  the  water  would  not  be  the  property 
even  of  the  exclusive  owner  of  the  solum  and  of  both  banks  at  the 
place  in  question."  l 

That  the  riparian  right  does  not  depend  on  ownership  of  the 
bed  on  the  cujus  est  solum  principle  was  held  in  Texas 2  and  in 
California,3  both  holding  that  riparian  rights  to  have  the  water  for 
use  for  irrigation  exist  on  navigable  streams  where  title  to  the  bed 
is  in  the  State. 

And  finally  Lux  v.  Haggin  expressly  holds  (relying  on  the  Lyon 
case)  that  ownership  of  bed  alone  gives  no  riparian  right.4 

25  69  Cal.  255,  at  415,  10  Pac.  674.  soil  under  the  water  or  not."     Died- 

"The  ownership  of  land  under  water  rich  v.  Northwestern  etc.  Co.,  42  Wis. 

is   not    the    foundation    of    riparian  262,   24   Am.   Eep.   386.     "Ownership 

rights,  properly  so  called,  because  the  of  the  land  does  not  include  ownership 

word  'riparian'  is  relative  to  the  bank  of  the  water  which  flows  over  or  past 

and  not  to  the  bed  of  the  water."     24  it."     Rice,  P.  J.,  in  Wilkes  Bare  Co. 

Am.  &  Eng.  Ency.  of  Law,  981.     "A  v.  Lehigh  Co.,  3  Kulp.  (Pa.)  389. 

watercourse  is  quite  a  distinct  thing  l  Lord     Robertson     in     White     v. 

from    the    land."     Brown   v.    Best,    1  White,    [1906]    App.   Cas.   83,    House 

Wils.    K.    B.    174,    95    Eng.    Reprint,  of  Lords. 

557.     A  right  to   the  use   of  flowing  2  Bingham    Bros.    v.    Port    Arthur 

water  does  not  necessarily  depend  on  etc.  Co.    (Tex.   Civ.  App.),  91  S.  W. 

the  ownership  of  the  soil  covered  by  848,    being   affirmed,    so    far    as    this 

the  water.     City  of  Paterson  v.  East  point  is  concerned,  in   100  Tex.   192, 

Jersey  W.  Co.,  74  N.  J.  Eq.  49,  70  Atl.  97  S.  W.  686,  13  L.  R.  A.,  N.  S.,  656, 

479.     Riparian  rights   do   not  depend  though     reversed    on    other     grounds. 

on   ownership   of   the   bed,   and   exist  See   cases    cited    regarding     riparian 

where  title  to  the  bed  is  in  the  Crown,  rights  on  navigable  streams,  sec.  726. 

or  wholly  in  the  opposite  owner.     Sal-  3  Heilbron    v.    Fowler   etc.    Co.,    75 

mond    on    Torts,    p.    252.     Riparian  Cal.  426,  7  Am.  St,  Rep.  183,  17  Pac. 

rights  do  not  depend  on  the  bed.     19  535. 

H.     L.     R.     216n.     "Riparian     rights  *  Lux  v.   Haggin,   69   Cal.   255,   at 

proper  are  held  to  rest  upon  title  to  413,  10  Pac.  674,  saying:  "The  plain- 

the  bank  of  the  water,  and  not  upon  tiffs,    being    owners    only    of     swamp 

title  to  the  soil  under  the  water;  ripa-  lands    (even   conceding   the  water    in 

rian    rights    proper    being    the    same,  the  swamp  might  constitute  a  stream), 

whether  the  riparian  owner  owns  the  were  owners  only  of  the  bed  of  the 


§  699  Ch.  29.     THEOKY  OF  THE  COMMON  LAW.       (3d  ed.)  771 

To  conclude,  the  "cujus  est  solum"  doctrine,  has  no  application 
to  natural  streams  of  running  water.  '  The  word  "land"  includes 
standing  or  percolating  water,  but  does  not  include  naturally  run 
ning  water,  because  aqua  profluens  is  governed  by  a  civil-law  rule. 
The  riparian  right  of  use  is  merely  one  of  the  numerous  incidents 
attached  to  the  riparian  land,  because  it  affords  access  to  the 
stream.5 

(3d  ed.) 

§  699.  Results. — The  application  of  the  "cujus  est  solum"  doc- 
trine to  running  waters  gives  rise  to  most  of  the  matter  so  harshly 
commented  upon  to-day  by  opponents  of  the  common  law  of  ripa- 
rian rights  in  the  West.  We  state  here,  citing  the  authorities  later, 
some  of  the  most  important  results  of  this  view : 

The  riparian  right  would  not  exist  without  ownership  of  the 
bed  of  the  stream.  It  would  not  exist  in  navigable  streams,  where 
title  to  the  bed  is  in  the  State.  A  loss  of  title  to  the  bed  (by  grant 
for  example),  though  retaining  land  on  the  banks,  would  lose  the 
riparian  right.  Title  to  the  bed  alone  would  confer  the  right. 
None  of  these  propositions  is  law. 

Any  taking  from  the  stream  even  by  a  riparian  owner  is-  prima 
facie  wrongful  under  the  cujus  est  solum  doctrine,  as  a  destruction 
and  annihilation  pro  tanto  of  the  estates  of  other  proprietors, 
whereas  on  the  former  view  any  taking  by  a  riparian  proprietor  for 

stream,    and   were    not    riparian   pro-  to   wharf   out,   which   right   is   admit- 

prietors."  tedly  based  upon  his  right  of  access. 

If  the  bed  lies  in  one  county  and  It  is  simply  one  of  the  various  ripa- 

the    riparian     land    in     another,    the  rian  rights,  as  per  Lewis's  enumera- 

water-right  is  not  taxable  as  part  of  tion    (as     to     navigable     waters)     as 

the  bed  in   the   former,  but  must  be  follows:   "First.  The  right  to  be  and 

taxed  only  in  the  latter  county.     See  remain  a  riparian    proprietor  and    to 

In  re   Hall,   116   App.   Div.   729,   102  enjoy   the  natural    advantages   there- 

N.   Y.   Supp.    5.     See   cases   cited   in  by    conferred    upon    the   land   by   its 

8  Harvard  Law  Review,   141.  adjacency  to  the  water.     Second.  The 

Action     to     quiet     title     must     be  right  of  access  to  the  water,  including 

brought  in  county  where  riparian  land  a  right  of  way  to  and  from  the  navi- 

lies,    not    where    bed    of    stream   lies.  gable  part.     Third.  The  right  to  build 

Miller  v.  Madera  etc.  Co.,  155  Cal.  59,  a    pier    or    wharf     out     to    navigable 

99  Pac.  502,  22  L.  R.  A.,  N.  S.,  391.  water,  subject  to  any  regulations  by 

If  a  riparian  owner  dies,  his  right  the  State.     Fourth.  The   right  to  ac- 

to  the  water  passes  by  probate  in  the  cretions      or      alluvium.     Fifth.     The 

State  where  the  riparian  land  lies,  not  right  to  make  a  reasonable  use  of  the 

where  the  bed  of  the  stream  lies  (the  water  as  it  flows  past  or  leaves   the 

State  boundary  separating  the  two).  land."     Lewis    on    Eminent    Domain, 

Slack  v.  Walcott  (Story,  J.),  3  Mason,  83.     In   sections   78   to   82  he  elabor- 

508,  Fed.  Gas.  No.  12,932.  ately  sets  out  the  Lyon  case  as  estab- 

5  There    is    a    large    body    of    law  lishing  the  proper  law. 
concerning  the  riparian  owner's  right 


772  (3ded.)    Pt.FV.    THE  COMMON  LAW  OF  RIPARIAN  RIGHTS.    §699 

use  of  his  own  land  is  prima  facie  rightful  until  shown  to  unreason- 
ably damage  other  riparian  proprietors ;  and  solely  an  injury  (if  at 
all)  to  the  right  of  use,  present  or  future,  of  the  complaining  ripa- 
rian proprietor  or  to  the  value  of  his  estate.  In  the  discussion  in  a 
Nebraska  case  6  it  was  seen  that  the  decisions  were  not  in  accord  with 
the  statement  that  the  riparian  proprietor  had  a  property  right  in 
the  stream  as  a  body  as  nature  placed  it  upon,  and  made  it  a  part 
of  his  estate,  saying:  "The  nature  and  extent  of  a  riparian  pro- 
prietor's pecuniary  interest  or  property  in  a  stream  cannot  be 
measured  by  such  a  rule,  nor  can  the  rule  now  be  said  to  be  full  and 
accurate  statement  of  the  law. ' ' 7 

6  Crawford  v.  Hathaway,  67  Neb.  Canal  Co.,  155  Cal.  82,  132  Am.  St. 
325,  108  Am.  St.  Rep.  647,  93  N.  W.  Rep.  59,  99  Pac.  520,  22  L.  R.  A.,  N. 
781,  60  L.  R.   A.   889.                            ,  S.,  401,  17  Ann.  Cas.  823.     And  Lux 

7  A  recent  California  case,  as  be-  v.  Haggin,  69  Cal.  255,  10  Pac.  674, 
tween    riparian    proprietors,    calls     it  calls  it  "what  has  been  said  to  be  the 
"the  alleged  common-law  rule";  "this  common  law,"  and  holds  it  a  misrep- 
supposed    rule";    "the   so-called   coin-  resentation  as  to  the  rights  of  ripa- 
mon-law     right."     Turner    v.     James  rian  owners  among  themselves. 

§§  700-708.     (Blank  numbers.). 


§  709  Ch.  30.    NATUEE  OF  BIPAEIAN  EIGHT.        (3d  ed.)  773 

CHAPTER  30. 
NATURE  OF  RIPARIAN  RIGHT. 

§  709.     Natural  right. 

§  710.     Same. 

§  711.     Part  and  parcel  of  riparian  land. 

§  712.     The  right  is  usufructuary. 

§  713.     As  subject  of  grant  or  contract. 

§§  714-722.     (Blank  numbers.) 

(3d  ed.) 

§  709.  Natural  Right. — The  riparian  right  has  long  been  called 
a  ' '  natural  right. ' ' 

The  explanation  usually  given  to  this  term  indicates  the  sound- 
ness of  the  doctrine  that  the  right  arises  out  of  the  access  which  the 
riparian  land  naturally,  by  the  facts  of  nature,  gives.  Thus:  "It 
has  been  well  said  that  the  rights  of  a  riparian  proprietor,  so  far 
as  they  relate  to  any  natural  stream,  exist  jure  naturae,  because  his 
land  has  by  nature  the  advantage  of  being  washed  by  the  stream; 
and,  as  the  facts  of  nature  constitute  the  foundation  of  the  right, 
the  law  should  recognize  and  follow  the  course  of  nature  in  every 
part  of  the  same  stream. ' ' *  And  another  case  says :  ' '  The  right 
exists  because  the  stream  runs  by  the  land,  and  thus  gives  the  natural 
advantages  resulting  from  the  relative  situation."2  And  in  Chase- 
more  v.  Richards,3  Lord  Wensleydale  (Baron  Parke)  says  the  right 
ex  jure  naturae  belongs  to  the  proprietor  of  the  adjoining  lands  as 
a  natural  advantage  belonging  to  the  land  upon  the  same  principle 
that  he  is  entitled  to  support  from  his  neighbor's  soil  for  his  .own 
in  its  natural  state,  thereby  explaining  "natural  right"  on  the 
ground  of  being  contiguous  to  or  adjoining  the  stream  in  its  natural 
situation.  Professor  Pomeroy  said:  "The  laws  of  nature  certainly 
give  a  natural  right  and  advantage,  from  their  superiority  of  posi- 
tion, to  those  who  own  land  lying  on  the  banks  of  natural  streams. 
It  is  an  undeniable  fact  that  such  proprietors  have  a  natural  right 
as  compared  with  those  who  own  land  at  a  distance  from  streams."  4 

1  Baker,  J.,  in  Indianapolis  W.  Co.  2  Duckworth     v.     Watsonville     etc. 

v    American   etc.    Co,    53    Fed.   970.  Co.,  150  Cal.  520,  89  Pae.  338,  per  Mr. 

c    4        j  u    T     *  Justice  Shaw. 

The  expression  was  first  used  by  Lord  .  *  TT  T    n       o.m   11  ™        T> 

,  -,  3  7  H.  L.  Cas.  349.  11  Eng.  Eepnnt, 

Selborne  in  Lyon  v.  Fishmongers'  Co.,  14Q 

L.  B.  1  App.  Cas.  673,  as  to  which          4  Pomeroy  on  Eipariah  Eights,  sec. 
case  see,  also,  supra,  sec.  698.  152. 


774  (3d  ed.)    Pt.  IV.    THE  COMMON  LAW  OF  EIPABIAN  EIGHTS.    §  709 

As  a  result  of  the  favorable  situation  with  access  to  the  stream, 
while  the  riparian  owner's  right  is  negative  as  to  the  corpus  of  the 
water  and  not  an  ownership  thereof,  it  is  a  positive  right  in  respect 
to  the  use  of  his  land.  His  riparian  estate  is  made  up  of  many  ele- 
ments, not  alone  the  actual  soil,  but  other  natural  advantages  of 
situation  without  which  the  soil  would  not  have  its  character  and 
potentialities  of  use.  Pure  air,  the  right  of  support,  benefits  from 
flowing  water,  all  such  intangible  ingredients,  mixing  together  writh 
the  soil  itself,  join  to  form  the  value  or  quality  of  the  estate  owing  to 
its  natural  position ;  their  preservation  maintains  the  use  of  the  land. 
They  are  all  "natural  rights"  in  the  sense  that  they  are  an  essential 
part  of  the  value  of  the  estate  in  its  natural  condition.5  Nor  do 
they  depend  upon  use.  The  right  to  build  a  house  on  one's  own 
land  is  also  in  this  sense  a  "natural  right" — in  the  sense  that  the 
right  to  do  so  goes  with  ownership  of  the  land,  whether  a  house  is 
actually  built  or  not.6  And  so,  likewise,  the  right  to  use  the  water 
flowing  by  one's  land  and  to  receive  its  benefits  remains  inherent 
in  the  riparian  land  whether  it  is  actually  put  to  use  by  erecting 
irrigation  or  other  works  or  not. 

The  term  "natural  right"  is  further  used  as  indicating  natural 
origin  in  contradistinction  to  rights  in  artificial  conditions  resting 
upon  grant  or  prescription.7  An  old  case  distinguishes  a  water- 
course from  an  easement  by  saying,  that  "a  watercourse  is  a  thing 
natural."8 

6  "These  rights  are,  in  simple  truth,  Stokoe  v.  Singer,  8  El.  &  Bl.  31.  A 
merely  fractions  of  that  complex  natural  right  is  said  to  be  one  which 
bundle  of  rights  which  we  call  owner-  is  necessary  to  preserve  the  status 
ship,  and  which  are  recognized  by  the  quo,  adding  that  it  is  "a  right  of  the 
law  as  existing  independently  of  owner  to  the  enjoyment  of  his  prop- 
special  grant  or  contract,  express  or  erty,  as  distinguished  from  an  ease- 
implied."  Jenks  on  Modern  Land  ment  supposed  to  be  gained  by  grant" 
Law,  p.  166.  (Lord  Selborne,  C.,  in  Dalton  v.  An- 

6  "The  right   of  the  owner  of  the  gus,  6  App.  Gas.  791,  adding),  "The 
soil  to  the  free  use  and  enjoyment  of  right,   therefore    [of   support]    in  my 
the  same  is  held  to  exist  anterior  to  opinion    is    properly    called    an    ease- 
any  erection  that  may  be  made  by  an  ment;  though  when  the  land  is  in  its 
adjoining      proprietor."      Tenney      v.  natural  state  the  easement  is  natural 
Miners'  D.  Co.,  7  Cal.  340,  11  Morr.  and  not  conventional.     The  same  dis- 
Min.  Eep.  31,  and  hence  the  doctrine  tinction  exists  as  to  rights  in  respect 
of   "coming  to   a  nuisance"   does   not  of   running   water;     the   easement  of 
apply.  the  riparian  landowner  is  natural,  that 

7  Supra,  sec.  51  et  seq.  of  the  mill   owner  on  the  stream,  so 

8  Shury   v.   Pigott,   Poph.    168,   79  far  as  it  exceeds  that  of  an  ordinary 
Eng.  Eeprint,  1263.  riparian  proprietor,  is  conventional;  i. 

Another  says,  "The  right  to  the  nat-  e.,  it  must  be  established  by  prescrip- 
ural  flow  of  water  is  not  an  easement,  tion  or  grant."  Again,  natural  rights 
but  a  natural  right."  Earl,  J.,  in  are  said  to  be  such  as  are  given  by 


§709 


Ch.  30.     NATURE  OF  RIPARIAN  RIGHT.         (3d  ed.)  775 


The  riparian  right  has  been  compared  to  the  right  a  landowner 
has  to  tiie  free  passage  of  unpolluted  air,9  and  has  often  been  com- 
pared to  the  right  of  support.10  They  are  not  servitudes  upon  an- 
other's property,  but  are  rights  to  the  enjoyment  of  one's  own 
property.11 

The  term  "natural  right"  hence  contemplates  a  natural  ad-  * 
vantage  or  privilege  of  the  land  inherent  in  its  favorable  position 
with  respect  to  the  stream  as  a  natural  resource,  the  preservation 
of  which  advantage  is,  to  the  extent  that  it  is  or  may  be  beneficial 
to  the  land,  necessary  to  the  preservation  of  the  use  and  value  of 
the  land,  whether  actually  exercised  or  not.  It  could  not  be  better 
put  than  in  a  recent  California  case,  in  which  Mr.  Justice  Shaw 
said:  "It  comes  from  the  situation  of  the  land  with  respect  to  the 
water,  the  opportunity  afforded  thereby  to  divert  and  use  the  water 
upon  the  land,  the  natural  advantages  and  benefits  resulting  from 
the  relative  positions,  and  the  presumption  that  the  owner  of  the 
land  acquired  it  with  a  view  to  the  use  and  enjoyment  of  these  ' 
Opportunities,  advantages  and  benefits. ' ' 12  And  this  idea  that  the 
right  is  a  "natural"  one  in  the  sense  of  being  made  up  of  these 
intangible  natural  advantages  and  benefits  runs  through  all  the 
better  opinions  upon  the  subject.13 


law,  because  without  them  there  would 
be  no  security  in  the  enjoyment  of  the 
land  by  its  owner;  benefits  provided 
in  the  course  of  nature  for  the  com- 
mon good  of  all,  which  shall  not  be 
wrested  from  one  by  the  act  of  an- 
other. Gray  v.  McWilliams,  98  Cal. 
161,  35  Am.  St.  Rep.  163,  32  Pac. 
976,  21  L.  R.  A.  593.  See  Backhouse 
v.  Bonomi,  9  H.  L.  Gas.  513;  11  Eng. 
Reprint,  825;  Dalton  v.  Angus,  L.  R. 

6  App.  740. 

9  Embrey  v.   Owen,  6    Ex.  353,  20 
L.  J.  Ex.  212;  Chasemore  v.  Richards, 

7  H.   L.   Cas.   349,   11   Eng.   Reprint, 
140,     Lord     Cranworth;     Dalton     v. 
Angus,    6   App.    Cas.    752,  Field,  J. ; 
Ramsbotham   v.   Wilson,   8   El.   &   Bl. 
123,  Willes,  J.;  Shury  v.  Pigott,  Poph. 
169,    79    Eng.    Reprint,    1263.     "The 
right    to    running    water    has    always 
been   properly    described    as    a    natu- 
ral  right,   just  like  the  right   to   the 
air   we   breathe;    they    are    the    gifts 
of  nature,  and  no  one  has  a  right  to 
appropriate    them."     Lord  Crahworth 
in   Chaeemore    v.   Richards,   7    H.   L. 
Cas.  349,  11  Eng.  Reprint,  140. 


10  Dalton  v.  Angus,  6  App.  Cas. 
791,  Selborne,  C.,  •  and  Field,  J.; 
Chasemore  v.  Richards,  Lord  Wensley- 
dale;  Dickinson  v.  Canal  Co.,  7  Ex. 
299;  Ramsbotham  v.  Wilson,  8  El.  & 
Bl.  123,  Willes,  J.;  Washburn  on 
Easements.  In  Dalton  v.  Angus, 
Field,  J.,  said  these  rights  and  bur- 
dens come  into  existence  by  implica- 
tion of  law  at  the  very  moment  of 
severance  of  an  estate  into  parcels, 
and  require  no  age  to  ripen  them. 

H  Lord  Wensleydale  in  Backhouse 
v.  Bonomi,  9  H.  L.  Cas.  503,  11  Eng. 
Reprint,  825.  The  riparian  right  is 
properly  a  right  of  property  in  itself 
and  not  a  servitude.  Ill  Droit  Civile 
Francais,  par  Aubrey  &  Rau,  4th  ed., 
p.  34,  note  1. 

12  Turner  v.  James  Canal  Co.,  155 
Cal.  82,  132  Am.  St.  Rep.  59,  99  Pac. 
520,  22  L.  R.  A.,  N.  8.,  401,  17  Ann. 
Cas.  823. 

13  Lord  Ellenborough  says   (Bealey 
v.   Shaw,   6   East,   208,   102   Eng.   Re- 
print, 1266)  :  "The  general  rule  of  law 
as  applied  to  this  subject  is  that,  in- 
dependent   of    any    particulai    enjoy- 


776  (3d  ed.)    Pt.  IV.    THE  COMMON  LAW  OF  RIPARIAN  RIGHTS.    §  710 


(3d  ed.) 

§  710.  Same. — There  has  been  an  explanation  given  to  the 
term  which  is  misleading  and  should  be  noted  and  laid  aside.  For 
example:  The  meaning  of  "natural  right,"  as  applied  to  waters, 
was  discussed  in  one  case,14  concluding  that  it  refers  to  natural  jus- 
tice, saying:  "I  am  not,  therefore,  introducing  any  novel  principle 
if  I  regard  jus  naturae  on  which  the  right  to  running  water  rests, 
as  meaning  that  which  is  aequum  et  bonum  between  the  upper  and 
lower  proprietors. ' ' 15  Referring  to  the  following :  ' '  Unde  dicitur 
ius  naturale  est  quod  natura,  id  est,  ipse  Deus,  docuit  omnia  ani- 
malia."16 

But  this  is  a  relic  of  a  past  day  in  the  philosophy  of  the  law; 
we  do  not  now  look  to  the  "law  of  nature"  or  divine  instruction 
for  the  settlement  of  the  rights  of  irrigators.  Says  the  court  in  Lux 
v.  Haggin:17  "We  have  been  warned  lest  in  approaching  the  sub- 


ment  used  to  be  had  by  another,  every 
man  has  a  right  to  have  the  advantage 
of  a  flow  of  water  in  Ms  own  land." 
In  Johnson  v.  Jordan,  2  Met.  (Mass.) 
239,  37  Am.  Dec.  85,  Shaw,  C.  J., 
says:  "Every  person,  through  whose 
land  a  natural  watercourse  runs,  has 
a  right,  publici  juris,  to  the  'benefit 
of  it  as  it  passes  through  his  land,  to 
all  the  useful  purposes  to  which  it 
may  be  applied."  Concisely  put,  "The 
property,  therefore,  consists,  not  in 
the  water  itself  but  in  the  added  value 
which  the  stream  gives  to  the  land 
through  which  it  flows."  Price  v. 
High  Shoals  Co.,  132  Ga.  246,  64  S.  E. 
87,  22  L.  R.  A.,  N.  S.,  684. 

14  Bradford  Corporation  v.  Ferrand, 
[1902]   2  Ch.  655. 

15  Blackstone   says:     "This   law   of 
nature,   being   coeval   with    mankind, 
and   dictated   by   God  himself,   is,   of 
course,  superior  in  obligation  to   any 
other."     1  Blackstone's  Commentaries, 
41.     Austin  says :  "I  may  immediately 
explain  in  this  place  the  nature   of 
certain     rights,     which     have     been 
confounded    by    mysterious    jargon; 
namely,  those  which  are  called  nat- 
ural  or  inborn,   and  by  Blackstone, 
absolute  rights."     Austin's  Jurispru- 
dence, sec.  1013. 

16  Bracton,    as   quoted   in   Vol.   8, 
Selden  Society,  p.  33.     This  expres- 
sion is  like  "Sic  utere  tuo  ut  alienum 
non     laedas,"     which     is     sometimes 
thought  the  "open  sesame"  of  this  and 


all  other  branches  of  the  law.  It 
means  little  because  it  includes 
everything,  like  its  proper  transla- 
tion, "Thou  shalt  do  no  wrong." 
(See  Cal.  Civ.  Code,  sec.  3514.)  For 
an  attempt  to  develop  the  common 
law  of  waters  directly  from  this 
maxim,  see  Phear  on  Rights  of 
Water.  He  says  the  "alienum"  of 
the  maxim  becomes  "very  compre- 
hensive" when  he  tries  to  fit  the  de- 
cisions to  it  (page  22).  He  defines 
the  term  "natural  right"  as  follows: 
"The  rights  which  spring  from  the 
exclusive  power,  given  by  the  com- 
mon law  to  every  possessor  of  prop- 
erty, of  doing  what  he  likes  with  his 
own,  when  modified  by  the  rule 
which  has  just  been  discussed  [sic 
utere  tuo,  etc.]  may  be  conveniently 
designated  Natural  Rights"  (page 
7).  Is  this  any  less  a  "mysterious 
jargon"  than  that  above  referred  to 
by  Austin?  Austin  (II,  p.  829)  fur- 
ther points  out  that  if  by  "laedas" 
is  meant  mere  damage,  the  maxim 
is  untrue  as  a  legal  proposition;  if 
it  means  "injury"  it  tells  us  noth- 
ing, as  it  affords  no  explanation  of 
the  distinction  between  damage  and 
injury.  Digby  on  History  of  Real 
Property,  5th  ed.,  p.  188,  note. 
Phear's  definition  of  Natural  Right 
is  borrowed  by  Angell  on  Water- 
courses, 7th  ed.,  p.  190. 

17  69  Cal.  255,  10  Pac.  674. 


§  711  Ch.  30.     NATURE  OF  RIPARIAN  RIGHT.         (3d  ed.)  777 

ject  we  shall  assume  that,  in  the  very  nature  of  things,  running 
waters  are  inseparably  connected  with  the  riparian  lands.  It  may 
be  conceded  that  if  riparian  owners  have  any  right  in  the  waters 
(or  in  the  lands  themselves),  it  is  such  as  is  created  or  recognized 

by  the  law  of  the  land The  whole  matter  depends  upon  the 

law  of  the  country,  written  or  unwritten. ' ' 

Perhaps  the  origin  of  the  term  is  involved  Somewhat  in  the  dis- 
tinction between  natural  and  artificial  uses  discussed  below.  The 
common  law  considered  that  there  were  natural,  ordinary  or  ele- 
mental uses  of  land  that  could  be  made  regardless  of  damage  to  a 
neighbor,  which  in  such  case  was  considered  damnum  absque  in- 
juria.  Such  was  the  taking  of  the  whole  stream,  if  necessary,  for 
the  support  of  life  on  the  riparian  land — a  natural  or  elemental 
use  of  property,  the  right  to  make  this  natural  use  being  termed 
a  "natural  right"  or  advantage  belonging  to  the  land.18 

(3d  ed.) 

§  711.  Part  and  Parcel  of  Riparian  Land. — Unlike  an  appro- 
priation, riparian  rights  need  no  act  of  the  owner  to  acquire  them ; 
they  attach  to  the  land  bordering  on  the  stream  of  their  own  accord. 
The  riparian  right  is  a  privilege  that  is  part  and  parcel  of  the 
riparian  land  that  gives  the  access  to  the  water ;  the  right  of  access 
and  all  that  follows  from  it  being  an  inseparable  result  from  owner- 
ship of  the  land  like  the  right  of  support  for  the  land.  The  ripa- 
rian right  is  inherent  in  the  riparian  land  and  part  and  parcel  of 
it;  an  inherent  result  of  the  relative  position  of  the  land  to  the 
stream  as  a  natural  resource. 

The  following  quotations  show  how  this  is  put  in  the  authori- 
ties: "It  is  held  by  practically  all  the  better  authorities  that  the 
right  of  the  riparian  owner  to  the  natural  flow  of  the  stream  by  or 
across  his  land  in  its  accustomed  channel  is  an  incident  to  his 
estate  and  passes  by  a  grant  of  the  land,  unless  specifically  re- 
served. It  is  not  an  easement  in  or  an  appurtenance  to  the  land," 
etc.19  Says  the  court  in  Lux  v.  Haggin,20  "By  the  common  law, 
the  right  of  the  riparian  proprietor  to  the  flow  of  the  stream  is  in- 
separably annexed  to  the  soil,  and  passes  with  it,  not  as  an  easement 

18  See    Natural    Uses,    infra,    sec.  words   are   chiefly   copied   from   the 
740.  opinions   of   Chief   Justice    Shaw   of 

19  Benton    v.    Johncox,    17    Wash.  Massachusetts    in    Eliott    v.    Fitch- 
277,  61   Am.   St.   Rep.  912,  49  Pac.  burg  Ry.,  10  Cush.   (Mass.)   191,  57 
496,  39  L.  R.  A.  107.  Am.  Dec.  85,  and  Johnson  v.  Jordan, 

20  69  Cal.  255,  10  Pae.  674.     The  2  Met.  (Mass.)  239,  37  Am.  Dec.  85. 


778  (3d  ed.)    Pt.  IV.    THE  COMMON  LAW  OF  RIPARIAN  RIGHTS.    §  711 

-or  appurtenance,  but  as  part  and  parcel  of  it.  Use  does  not  create 
the  right,  and  disuse  cannot  destroy  or  suspend  it."  Said  Chan- 
cellor Kent:  "A  right  to  a  stream  of  water  is  as  sacred  as  a  right 
to  the  soil  over  which  it  flows.  It  is  a  part  of  the  freehold  of  which 
no  man  can  be  disseized  but  by  lawful  judgment  of  his  peers,  or  by 
due  process  of  law. ' '  21  Another  authority  says :  ' '  The  right  of 
enjoying  this  flow  without  disturbance  or  interruption  by  any  other 
proprietor  is  one  jure  naturae,  and  is  an  incident  of  property  in 
the  land,  not  an  appurtenance  to  it;  like  the  right  he  has  to  enjoy 
the  soil  itself,  in  its  natural  state,  unaffected  by  the  tortious  acts 
of  a  neighboring  landowner.  It  is  an  inseparable  incident  to  the 
ownership  of  land,  made  by  an  inflexible  rule  of  law  an  absolute 
and  fixed  right,  and  can  only  be  lost  by  grant  or  ....  adverse 
possession."  22  In  another  case  it  is  said:  "His  rights  are  not  ease- 
ments or  appurtenances  to  his  holdings.  They  are  not  the  rights 
acquired  by  appropriation  or  by  prescriptive  use.  They  are  at- 
tached to  the  soil  and  pass  with  it."23  And  another:  "The  right 
or  title  to  the  stream  as  it  passed  was  a  part  and  parcel  of  his  land, 
a  part  of  the  realty. ' ' 24 

The  right  was  compared  by  Lord  Wensleydale  (Baron  Parke)  in 
Chasemore  v.  Richards  to 'the  right  of  the  land  to  the  support  of 
adjoining  land,  a  natural  attribute  of  the  land  in  its  natural  situ- 
ation, and  this  comparison  to  the  right  of  support  has  passed  into 
the  authorities  generally.  One  authority  compares  the  right  to  a 
right  of  common  or  pasturage  appurtenant  to  the  land.25  but  as  the 
above  authorities  show,  the  law  does  not  consider  it  an  easement 
or  appurtenance.1  The  right  is  part  and  parcel  of  the  land,  ac- 
quired by  virtue  of  ownership  of  the  land,  without  any  special 

21  Gardner  v.  Newburgh,  2  Johns.  v.     Dangberg,     81    Fed.     73 ;     Wads- 
Ch.  166.  worth    v.    Tillottson,    15    Conn.    366, 

22  Washburn    on    Easements,    4th  39  Am.  Dec.  391;   Carey  v.  Daniels, 
ed.,  pp.   316,   317.  49  Mass.   (8  Met.)  466,  41  Am.  Dec. 

23  Hargrave  v.  Cook,  108  Cal.  72,  532. 

41    Pac.    18,    30   L.    R.    A     390     and  ^  ^^         Todmorden   c       n 

Anderson  v.   Bassman,   140  Fed.   22.       n    -p    ,70    „  T      T 

24  Mr.    Justice    Shaw,    in    Duck-       ^  R  172>  Bowen>  L'  J" 

worth   v.    Watsonville   etc.    Co.,    150  l  See,    also,    Lux    v.    Haggin,    69 

Cal.    520,    89    Pac.    338.  Cal.  255,  at  293,  10  Pac.  674;  Vernon 

Also    Southern    California    Co.    v.  v.  Los  Angeles,  106  Cal.  237,  39  Pac. 

Wilshire,   144  Cal.   68,   77  Pac.   767;  762;    Pomeroy    on    Riparian    Rights, 

Huffner  v.  Sawday   (1908),  153  Cal.  sec.  9.     The  riparian  right  is  spoken 

86,   94   Pac.   424;    Miller   v.   Madera  of  as  an  "appurtenance"   in  Rianda 

etc.  Co.,  155  Cal.  59,  99  Pac.  5t)2,  22  v.   Watsonville   etc.   Co.    (1907),  152 

L.  R.  A.,  N.  S.,  391;  Union  Min.  Co.  Cal.  523,  93  Pac.  79. 


§  711  Ch.  30.     NATURE  OF  RIPARIAN  RIGHT.         (3d  ed.)  779 

formalities  of  any  kind.2  It  passes  ipso  facto  with  the  land  on  a 
sale,  as  part  and  parcel  thereof.3  The  riparian  right  may,  on  a 
partition  of  riparian  land,  be  partitioned  with  the  land;  the  sub- 
divided rights  of  the  partitioned  parcels  still  retain  their  character 
of  a  riparian  right  as  between  the  parties  to  the  partition.4  A 
deed  of  land  with  general  warranty  includes,  without  more,  a  war- 
ranty of  riparian  rights,  but  does  not  necessarily  include  a  warranty 
of  a  right  by  appropriation.5  It  is  subject  to  taxation  as  realty,6 
and  is  property  and  may  be  condemned  under  a  statute  mention- 
ing "land."7 

The  right  is  held  to  be  incorporeal — a  privilege  of  use  and  not  an 
ownership  of  a  tangible  substance — so  that,  being  incorporeal,  con- 
tracts concerning  it  cannot  create  the  relation  of  landlord  and 
tenant,  since  tenancy  can  exist  only  in  things  corporeal ; 8  nor  will 
ejectment  lie  to  recover  a  watercourse  diverted  from  a  riparian 
owner;9  nor  is  it  corporeal  property  taxable  as  part  of  the  stream 
bed;  it  is  taxable  only  as  an  incorporeal  incident  to  the  riparian 
land.10  Justice  Story11  said  that  the  riparian  right  "is  not  a  dis- 
tinct right  to  the  water,  as  terra  aqua  cooperta,"  and  is  not  a 
corporeal  hereditament,  but  is  an  incorporeal  hereditament  annexed 

2  Lux  v.   Haggin,  69   Cal.  255,   at  point    by    confusing    the    corpus    and 

390,  10  Pac.  674;  Bathgate  v.  Irvine,  the  usufruct.) 

126   Cal.   135,  77  Am.   St.  Rep.   158,  6  Penobscot  Co.  v.  Inhabitants  of 

58  Pac.  442.  Bradley,  99  Me.  263,  59  Atl.  83. 

TT        •       an  n  i    orr    -in  7  Northern  Cal.  etc.  Co.  v.  Stacher, 

P       «U-A  \       ggin'      P     t    ina  'r  i  I3  Cal.  App.  404,  109  Pac.  896. 

?9aCki  P5      iTC?  %    A ° Vn ?  i?  8  Swift  v.  Goodrich,  70  Cal.  103, 

72,  41  Pac.  18,  30  L.  R.  A.  390;  Ben-       -i  i  p        rpi 

ton    v     Johncox     17    Wash,    277     61  V/^.,     and     Shury     v.     Piggott, 

Am    St   Rep    912    49  Pac^,  39  L.  L  '  * 

R.    A.    107;    Rianda    v.    Watsonville  1rt  Q'       T'          xr-ii    ii«   A          TV 

etc.  Co.  (1907),  152  Cal.  523,  93  Pac.  J°  gjj  £n   „   Han,  116  App.  D,v. 

79.     That   the   riparian  right   passes  ^  *r  Jes  ^^    gunt 

ipso    facto    on    a    sale    of    the    land  t  ^  ^  ^    ^  ea 

Shamleffer    v     Council    etc.    Co.,    1  *  jure  C(fnsistun't  Msicut  hereditas, 

Kan.   24,   26   Am.   Dec.    ,60;   as  part  ^ufr£ct       obligation'eS)  quoquo  mode' 

W   T^Vin9   v'w  contractae"    ete.     ("Things    incorpo- 

'-^v  ,lfi',i\    9^'  real    are     ntangible;    rights,    for    in- 

T 9T       >  ?S  (         }>  P>  stance'  8uch  asginhe'ritaL,  'usufruct, 

J>  I^b'  z  obligation,      however      contracted.") 

4  Verdugo  Canyon  W.  Co.  v.  Ver-  institutes  of  Gaius,  sec.  12;  identical 
dugo    (1908),   152   Cal.   655,   93   Pac.  in   Institutes   of  Justinian,   V.     That 
1021.     See,    also,    Rose    v.    Mesmer,  tne  riparian  right  of  use  is  incorpo- 
142  Cal.  322,  75  Pac.  905.  real,    see,    also,    Washburn    on    Ease- 

5  Dalton   v.   Bowker,   8   Nev.    190.  ments,  307. 

(But  cf.  Mitchell  v.  Warner,  5  Conn.  »   Slack  v.  Walcott,  3  Mason,  508, 

519,  which   seems   in   error   on   this       Fed.  Cas.  No.  12,932. 


780  (3d  ed.)    Pt.  IV.    THE  COMMON  LAW  OF  RIPARIAN  RIGHTS.    §  712 


to  the  freehold.     The  right  is  "an  incorporeal  hereditament  apper- 
taining to  the  freehold."  12 

(3d  ed.) 

§  712.  The  Right  is  Usufructuary. — That  the  riparian  right, 
like  the  right  by  appropriation,  is  solely  usufructuary,  has  already 
been  set  forth  at  length,13  and  need  not  be  again  considered  further 
than  to  say  that  the  riparian  proprietor  ''has  no  property  in  the 
water  itself,  but  a  simple  use  of  it  while  it  passes  along."14  The 
right  is  to  a  flow  and  use  merely,  a  right  now  or  in  the  future  or 
at  any  time  he  sees  fit,  to  use  the  water  as  naturally  following  owner- 
ship of  the  bordering  lands,  but  involving  no  ownership  in  the 
corpus  of  the  water;  just  as  riparian  owners  have  a  right  to  fish 
in  the  stream,  but  do  not  own  the  fish  swimming  there.15  In  Lux  v. 
Haggin  16  the  California  court  elaborately  reviewed  the  entire  law 
of  waters,  and  this  is  there  laid  down:  "As  to  the  nature  of  the 
right  of  the  riparian  owner  in  the  water,  by  all  the  modern  as  well 
as  ancient  authorities  the  right  in  the  water  is  usufructuary,  and 
consists  not  so  much  in  the  fluid  itself  as  in  its  uses. " 17  As  stated 


12  St.  Helena  W.  Co.  v.  Forbes,  62 
Cal.  182,  45  Am.  Dec.  659.     We  here 
use  the  word  "incorporeal"  in  its  ac- 
cepted sense  to-day,   as   denoting  the 
distinction    between    things    tangible 
and   intangible.     In  its   old   common- 
law  sense,  distinguishing  only  things 
which  "lay  in  livery"  and  those  which 
"lay  in  grant,"  the  riparian  right  is 
corporeal  because  it  passes  only  with 
the  land,  is  not  the  subject  of  sepa- 
rate   grant,    and    hence    lay    only    in 
livery.     In    this    sense    it    is    an    in- 
tangible, yet  corporeal,  hereditament; 
but   in   the   present-day   sense   no   in- 
tangible   things    are    considered    cor- 
poreal  hereditaments,  just   as  in  the 
civil  law  above  quoted. 

13  Supra,  cc.  1,  2,  29. 

14  Justice   Story,  in   Tyler  v.   Wil- 
kinson, 4  Mason,  397,  Fed.   Gas.  No. 
14,312. 

15  People  v.  Truckee  etc.  Co.,  116 
Cal.   397,    58    Am.    St.    Rep.    183,   48 
Pac.  374,  39  L.  R.  A.  581. 

The  following  puts  it  so  admirably 
that  the  writer  cannot  forbear  find- 
ing a  place  for  it:  "Besides  this  or- 
dinary right  of  property  [in  the  bed] 
which  is  precisely  the  same  when  the 
river  is  there,  as  if  it  were  to  dis- 
appear and  the  channel  become  dry, 


they  have  a  common  interest  arising 
from  another  right,  as  they  have  each 
a  right  in  the  water — not  of  prop- 
erty, for  certainly  aqua  proftuens  is 
not  the  subject  of  property  as  long 
as  it  is  running.  When  you  get  it 
into  your  pitcher  or  pipe  it  becomes 
your  property,  just  as  game  and  fish 
when  they  are  caught  become  the 
property  of  the  person  who  catches 
them;  but  while  it  is  flowing  and  in 
its  channel,  no  portion  of  the  water, 
either  on  one  side  of  the  alveus  [bed] 
or  the  other,  belongs  to  one  party 
or  the  other.  It  is  as  much  the  prop- 
erty of  no  one  as  the  air  that  we 
breathe  or  the  sunlight  that  shines 
upon  us.  But  each  heritor,  as  it 
passes,  has  a  right  of  an  incorporeal 
kind  to  the  usufruct  of  that  stream 
for  domestic  purposes  and  for  agri- 
cultural purposes,  and  it  may  be  also 
for  other  purposes,  subject  to  cer- 
tain restrictions."  Lord  Neaves  in 
Morris  v.  Bicket  (1864),  2  M.  1082, 
4  M.  H.  L.  44  (Scotch);  Ferguson 
on  The  Law  of  Water  in  Scotland, 
p.  199. 

16  69  Cal.  255,  10  Pac.  674. 

17  In    the    French    law    it    is    said 
that  riparian  owners  have  the  rights 
of  use  mentioned  in  article  644  £of 


§  713  Ch.  30.     NATURE  OF  RIPARIAN  RIGHT.         (3d  ed.)  781 

by  Mr.  Justice  Henshaw: 18  "The  right  of  a  riparian  proprietor  in 
or  to  the  waters  of  a  stream  flowing  through  or  along  his  land  is 
not  the  right  of  ownership  in  or  to  those  waters,  but  is  a  usu- 
fructuary right — a  right,  amongst  others,  to  make  a  reasonable  use 
of  a  reasonable  quantity  for  irrigation,  returning  the  surplus  to  the 
natural  channel,  that  it  may  flow  on  in  the  accustomed  mode  to  the 
lands  below."19 

This  usufruct  is  perpetually  annexed  to  the  riparian  land  whether 
availed  of  by  irrigation  or  other  works  or  not  at  all;  just  as  the 
right  of  the  landowner  to  build  a  house  on  the  land  remains  though 
no  house  is  ever  actually  built.  The  right  of  use  remains  part  of 
the  value  of  the  estate  whether  the  estate  is  put  to  use  or  not,  for 
the  common  law  does  not  force  a  man  on  pain  of  forfeiture  to  use 
his  land  or  other  property  if  he  does  not  want  to.  "The  use  to 
which  one  is  entitled  is  not  that  which  he  happens  to  get  before 
another,  but  it  is  that  which,  by  reason  of  his  ownership  of  the  land 
on  the  stream,  he  can  enjoy  on  his  land  and  as  appurtenant  to  it."  20 

The  riparian  owner  usually  owns  the  bed  to  the  middle  of  the 
stream,  but  the  right  is  independent  of  that  fact,21  and  exists  also 
in  navigable  streams,  where  the  title  to  the  bed  of  the  stream  is  in 
the  State,22  and,  on  the  other  hand,  does  not  exist  in  favor  of  one 
owning  only  the  bed,  and  no  bank-lands.23 

(3d  ed.) 

§  713.  As  Subject  of  Grant  or  Contract. — We  shall,  in  a  later 
chapter,  discuss  grants  or  contracts  by  riparian  owners,24  and  here 
but  mention  the  subject  as  an  illustration  of  the  nature  of  the 
riparian  right. 

Any  riparian  owner  may  make,  with  other  riparian  owners  or 
even  with  nonriparian  owners,  such  arrangement  as  he  may  choose 

the  Code  Napoleon],  also  the  right  to  themselves.  The  opinion  then  pro- 
fish,  and  the  right  to  islands  formed  ceeds  to  state  that  against  nonripa- 
there.  "Sauf  ces  avantages  accordes  rian  owners  the  riparian  proprietor's 
aux  riverains,  les  cours  d'eau  nat-  right  to  a  perpetual  usufruct  is  un- 
urels,  non  navigable,  ni  flottable,  ne  limited. 

se  trouvent  dans  le  patrimoine  de  per-  20  Ruffin,  C.  J.,  in  Pugh  v.  Wheeler, 

sonne."     Droit     Civile     Francais,     by  19  N    C    (2  Dev    &  B  )   55 

Aubrey  &  Ban,  Vol    II,  p.  36,  and  in  21 

a  note,   "Us  ne  sont  pas  susceptibles  £ 

d'etre   acquis   par  voie   d'occupation."  2  Infra,  sec.   726. 

is  Hargrave  v.  Cook,  108  Cal.  72,  23  Lux  v.  Haggin,  69  Cal.  255,  at 

11  Pac.  18,  13  L.  R.  A.  390.  413,  10  Pac.  674. 

is  The  statement  of  the  limitation  24  Infra,  sec.  844  et  seq. 

in  regard  to  riparian  owners  among 


782   (3d  ed.)    Pt.  IV.    THE  COMMON  LAW  OF  RIPARIAN  RIGHTS.    §  713 

as  against  himself.  He  has  power  to  bind  himself  in  the  matter, 
although  it  is  not  clear  whether  this  is  because  the  effect  is  to 
transfer,  as  against  himself,  such  interest  as  he  may  have,  or  only 
to  estop  him  to  deny  his  grant,  and  thus  to  extinguish  his  own  right 
as  against  his  grantee.  As  to  the  latter  explanation  it  is  not  clear 
how  it  can  be  reconciled  with  the  settled  doctrine  that  such  grants 
or  contracts  are  within  the  statute  of  frauds,  and  it  presents  other 
difficulties. 

But,  as  a  general  principle,  against  noncontracting  riparian 
owners,  he  can  make  no  grant  for  any  purpose  or  to  any  extent 
for  use  off  his  own  riparian  land.  The  right  is  naturally  bound 
up  in  the  riparian  owner's  land  as  an  element  of  the  use  of  his  own 
land,  and  exists  only  because  of  the  value  and  character  which  it 
gives  to  that  very  land.  Separating  it  from  that  land  separates 
it  from  its  foundation.  It  is  in  reference  to  the  riparian  owner's 
own  land  that  his  right  is  correlated  to  the  right  of  other  riparian 
owners,  and  not  with  reference  to  some  other  land  to  which  he 
may  like  to  carry,  or  sell  the  right  to  carry,  the  water.  Other  ripa- 
rian owners  in  regard  to  their  own  land  are  required  to  figure  only 
on  the  use  of  their  neighbors'  own  land;  for  the  reasonable  use 
thereof  they  must  make  due  allowance  in  considering  their  own 
correlative  right ;  but  are  called  upon  to  make  no  allowance  in  favor 
of  any  riparian  owner  or  his  grantee  as  to  any  land  other  than  the 
riparian  owner's  own,  nor  even  any  use  on  his  own  land  which  the 
riparian  owner  may  license  to  others,  greater  than  he  could  be 
allowed  to  make  himself.  Hence  the  grant  by  a  riparian  owner 
for  use  off  the  grantor's  land  is  ineffectual  against  other  riparian 
owners. 

Possibly  an  exception  may  exist  in  extreme  cases  where  the  non- 
riparian  use  granted  is  such  that  it  cannot  possibly  impair  the  use 
of  the  land,  nor  lessen  its  value,  of  the  complaining  riparian  owner 
at  any  time  even  in  the  future.  On  any  but  very  large  streams 
such  supposable  cases  are  remote,  but  may  possibly  exist ;  as  where, 
for  example,  the  grant  is  to  a  nonriparian  owner  who  uses  the 
water  only  for  cooling  off  machinery  and  returns  it  undiminished 
and  unpolluted  to  the  stream ;  25  or  where  the  land  of  the  complain- 
ing riparian  owner  is  worthless,  unproductive,  and  the  use  of  water 
could  never  become  an  element  of  value  of  his  estate.  In  such 
extreme  cases,  where  there  is  no  detraction  from  the  possible  present 

25  Kensit  v.  Great  Eastern  By.  Co.,  27  Ch.  D.  122. 


§  713  Ch.  30.     NATURE  OF  RIPARIAN  RIGHT.         (3d  ed.)  783 

or  future  benefits  and  advantages  to  the  complaining  proprietor's 
riparian  land  or  its  use  or  value,  it  is  a  question  on  principle 
whether  he  is  suffering  any  wrong.  But  such  cases  are,  on  the 
whole,  extreme ;  usually  the  grant  is  of  sufficient  water  or  for  such 
purpose  of  use  as  to  diminish  the  value  or  potentialities  of  the  com- 
plaining riparian  estate ;  and  as  a  general  rule  the  statement  must 
be  made  (though  reluctantly,  as  the  readers  of  previous  editions  of 
this  book  will  know)  that  noncontracting  riparian  owners  are  not 
in  any  way  bound  by  or  required  to  recognize  a  grant  made  by 
other  riparian  owners. 

Further  discussion  will  be  found  in  later  chapters.1 

1  Infra,  sees.  795,  814,  844. 

§§  714-722.     (Blank  numbers.) 


784  (3d  ed.)    Pt.  IV.    THE  COMMON  LAW  OF  KIPARIAN  EIGHTS.    §  723 


CHAPTER  31.. 
WHAT  PERSONS  AND  UPON  WHAT  WATERS. 

§  723.  Who  are  riparian  proprietors. 

§  724.  Landholders  less  than  in  fee. 

§  725.  Upon  what  waters — Watercourses. 

§  726.  Navigable  streams. 

§  727.  Interstate  streams. 

§  728.  Standing  water — Lakes — Ponds. 

§  729.  Percolating  water. 

§§  730-738.     (Blank  numbers.) 

(3d  ed.) 

§  723.  Who  are  Riparian  Proprietors. — Only  those  who  own 
land  touching  the  stream  and  in  contact  with  its  flow  are  riparian 
proprietors.1  One  having  title  only  to  the  bad  is  not  a  riparian 
proprietor.2  When  the  bed  is  dry  its  bank  owners  are  not  riparian 
proprietors  to  other  parts  of  the  stream  where  it  may  still  flow.3' 
"When  the  stream  ceased  and  the  channel  became  dry,  he,  for  the 
time  being,  ceased  to  be  a  riparian  owner,  so  far  as  a  present  use 
of  the  water  was  concerned.  His  land  did  not,  at  those  times, 
border  upon  any  stream, ' '  4  but  a  subsurface  flow  being  proved,  the 
fact  that  there  is  no  surface  flow  does  not  make  a  case  within  this 
rule ;  he  is  still  a  riparian  owner.6  The  rights  of  one  owning  land 
abutting  upon  an  inlet  or  slough,  connecting  with  a  stream,  to  take 
water  are  equal  to  those  of  riparian  proprietors  on  the  stream  itself.0 

1  Lyon  v.  Fishmongers'  Co.,  quoted  3  Stacy  v.  Delery   (Tex.  Civ.  App 
supra,   sec.   698;    Lux  v.   Haggin,   69       (1909),  122  S.  W.  300. 

Cal.  255,  10  Pac.  674;  Hayden  v.  4  Gutierrez  v.  Wege,  145  Cal.  730, 
Long,  8  Or.  244.  "All  riparian  79  Pac.  449;  Duckworth  v.  Watson- 
rights  depend  upon  the  ownership  of  ville  etc.  Co.,  150  Cal.  520,  89  Pac. 
land  which  is  contiguous  to  and  338.  See  infra,  see.  768,  riparian 
touches  upon  the  water."  Sullivan  land. 

Timber   Co.   v.    City   of   Mobile,    110  5  Infra,  sec.  1078  et  seq.;  Huffner 

Fed.  196.  v.  Sawday,  153   Cal.  86,  94  Pac.  424 

2  Lux  v.   Haggin,   69   Cal.   255,   at  (valley   dry  in  summer,  flowing  only 
413,    10    Pac.    674;    Page   v.    Mayor,  in  November  to  June;  sandy  soil  and 
10   App.   Div.    294,   41    N.   Y.    Supp.  changing   bed;    abutting  owners   held 
938.     But    see    Anaheim    W.    Co.    v.  to  be  riparian  proprietors). 

Fuller,    150   Cal.    329,    88    Pac.    978;  6  Turner  v.  James   Canal   Co.,   155 

McCarter   v.   Hudson   W.    Co.,    70   N.  Cal.  82,  132  Am.  St.  Rep.  59,  99  Pac. 

J.   Eq.   695,    118    Am.   St.    Eep.    754,  520,  22  L.  E.  A.,  N.  S.,  401,  17  Ann. 

65  Atl.  489,  10  Ann.  Gas.  116.  Gas.  823. 


§  724         Ch.  31.     WHAT  PERSONS  AND  WHAT  WATERS.     (3d  ed.)  785 

If  a  stream  flows  through  a  city,  there  are  authorities  that  the 
city  as  a  whole  is  a  riparian  proprietor.7  But  the  writer's  impres- 
sion is  that  the  better  decisions  hold  only  the  lot  owners  touching 
the  stream  as  the  riparian  proprietors.8 

(3d  ed.) 

§  724.  Landholders  Less  Than  in  Fee. — The  owners  of  pos- 
sessory rights  on  riparian  public  land,  constituting  equitable  claims, 
such  as  initiatory  homestead  claimants,  have  the  rights  of  riparian 
owners  from  the  first  necessary  proceedings.9  But  forfeiture  of 
title  to  the  land  occurring,  he  is  no  longer  a  riparian  proprietor,  as 
where  a  pre-emption  or  mining  claim  is  abandoned.10  Where  an 
Indian  reservation  is  thrown  open  to  settlement,  it  becomes  vacant 
public  land,  and  the  settler  cannot  claim  successorship  to  the 
Indians  as  riparian  proprietors.11  The  owner  of  a  mining  location 
may  be  a  riparian  proprietor.12 

In  the  pioneer  days  before  the  Federal  statutes  for  acquiring 
land  titles  it  remained  unsettled  whether  a  mere  squatter  on  ripa- 
rian public  land  could  claim  as  a  riparian  proprietor  as  against  later 
appropriators.  Crandall  v.  Woods  13  held  that  he  could ;  that  only 
the  United  States  could  raise  the  point  that  settlers  were  trespassers ; 

7  City  held  to   be  a  riparian  pro-  water  on  an  innavigable  stream.     Mc- 
prietor  and  may  as  such   take  water  Carter  v.   Hudson  etc.   Co.,  76  N.  J. 
for    domestic    use    of   its    inhabitants  Eq.   695,    118   Am.    St.   Rep.   754,   65 
but     not     to     supply     outside     lands.  Atl.     489,     an    anomalous     statement 
Canton  v.  Shock,  66  Ohio,  19,  90  Am.  made    only   arguendo   in    a    generally 
St.  Rep.  557,  63  N.  E.  600,  58  L.  R.  poor   opinion.     See   19   Harvard   Law 
A.  637.  Review,  216  note;  City  of  Paterson  v. 

Compare   Haupt's   Appeal,   125   Pa.  East  Jersey  W.  Co.,  74  N.  J.  Eq.  49, 

211,    17    Atl.   436,   3    L.   R.   A.   536;  70  Atl.  472.     Quaere,  how  far  a  rail- 

Barre  W.  Co.  v.  Games,  65  Vt.  626,  road  is  a  riparian  proprietor  where  it 

36  Am.  St.  Rep.  891,  27  Atl.  609,  21  owns  the  fee  of  its  roadbed  crossing 
L.  R.  A.  769;  Riggiey  v.  Tacoma  Co.,  or  paralleling  a  stream.     This  is  dis- 
9  Wash.  245,  37   Pac.  297,  26  L.  R.  cussed  in  McCartney  v.  Londonderry 
A.  425;   Tampa  W.  W.  Co.  v.  Cline,  etc.  Ry.  Co.,  [1904]  App.  Gas.  301,  311. 

37  Fla.  586,  53  Am.  St.  Rep.  262,  20  »  Supra,  sec.  261. 

South.    780,  33    L.   R.   A.    376;    New  10  Conkling  v.  Pacific  Imp.  Co.,  87 

Whatcom  v.  Fairhaven  Co.,  24  Wash.  Gal.  296,  25  Pac.  399. 

493,   64  Pac.   735,  54  L.   R.   A.   190;  U  Morris    v.    Bean     (Mont.),    146 

Stauffer  v.  East  Stroudsburg  Borough,  Fed.   432    (dictum),   affirmed   in    159 

215  Pa.  144,  64  Atl.  411;  Los  Angeles  Fed.  651;  86  C.  C.  A.  519.     See  supra 

v.  Los  Angeles  W.  Co.,  124  Gal.  368,  sec.  153,  note  19. 

57  Pac.  210,  571;  City  of  Schenectady  12  Crandall   v.   Woods,   8   Cal.   136, 

v.   Furman,   61   Hun,   171,   15   N.   Y.  1    Morr.    Min.    Rep.    607;    Leigh    v. 

Supp.  724.  Ditch  Co.,  8  Cal.  323,  12  Morr.  Min. 

8  The  State  has  been  said  to  be  a  Rep.  97. 

riparian  proprietor,  by  reason  of  its  13  8   Cal.    136,   1   Morr.   Min.   Rep. 

ownership   of    the    foreshore   at   tide-       604. 
Water  Rights — 50 


786  (3d  ed.)    Pt.  IV.    THE  COMMON  LAW  OF  EIPABIAN  EIGHTS.    §  725 

while  in  Nevada  it  was  held  that  he  could  not.14  But  now,  since 
the  systematization  of  the  Federal  system  for  acquiring  land  titles, 
a  mere  squatter  on  public  land  cannot  claim  as  riparian  proprietor 
by  virtue  of  his  naked  possession  without  having  made  or  intending 
to  make  such  filings  or  declarations  in  the  land  office  as  the  Federal 
statutes  may  require.15  A  trespasser  on  public  land  is  for  some 
purposes  deemed  the  owner,  but  when  one  asserts  riparian  rights 
as  against  an  upper  appropriator  of  water  he  must  show  some  rightj 
inchoate  or  otherwise,  to  the  land.16  And  especially  has  he  to-day 
no  right  which  he  can  assert  against  the  United  States  on  unsur- 
veyed  land  when  it  withdraws  the  land  for  the  Reclamation  Ser- 
vice.17 

How  far  a  trespasser  on  private  land  may  be  regarded  as  a 
riparian  owner  we  have  already  mentioned.18  On  principle  it  would 
seem  that  the  rule  of  Crandall  v.  Woods,  supra,  should  still  apply 
as  to  private  land;  that  against  strangers  to  the  landowner  the 
trespasser's  possession  of  the  riparian  land  is  alone  title  enough 
to  entitle  him  to  the  rights  of  a  riparian  owner  against  all  but  the 
owner  of  that  land.19  It  would,  as  already  said,  still  also  apply 
as  to  public  land  if  it  were  not  that  it  is  expressly  or  impliedly 
contrary  to  the  policy  of  the  Federal  statutes  and  the  Federal  land 
system,  as  to  squatters  who  have  made  no  filings  on  the  land. 

(3d  ed.) 

§  725.  Upon  What  Waters— Watercourses.— The  right  at- 
taches to  the  whole  natural  stream,  including  its  subflow 20  and 
storm  waters  21  and  tributaries.22 

A  slough  or  branch  emptying  into  the  main  stream  may  be  a 
part  thereof  so  as  to  entitle  an  owner  on  such  slough  or  branch 
to  go  off  his  land  and,  with  consent  of  a  riparian  owner  on  the  main 
stream  (or  on  public  land),  take  water  from  the  main  stream  for 
use  on  his  land  riparian  to  the  slough  or  branch.  While  he  is  not 
a  riparian  owner  on  the  main  stream,  it  does  not  preclude  him  from 

I*  See  supra,  sec.  261.  19  See  Salmond  on  Torts,  see.  

15  Supra,  sec.  261.  20  Infra,  sec.   1078. 

16  Silver  Creek  &  Panoche  Land  &  21  Infra,  see.  828. 

Water  Co.  v.  Hayes,  113  Cal.  142,  45  22  Supra,    see.     337;     Barneich    v. 

Pac.  191.  Mercy,    136    Cal.    205,    68    Pac.    589; 

17  United  States  v.Hanson  (Wash.),  Hollett    v.    Davis    (1909),    54    Wash. 
167     Fed.     881.     Cf.     Messenger     v.  326,   103   Pac.   423;    Chauvet  v.   Hill, 
Kingsbury,  158  Cal.  611   (1910),  112  93  Cal.  107,  28  Pac.  1066;  Wasbburn 
Pac.  65.  on   Easements,    4th   ed.,   p.   396,   star 

18  Supra,  sees.  221,  246,  319.  p.  275,  sec.  324. 


§  726        Ch.  31.     WHAT  PERSONS  AND  WHAT  WATERS.     (3d  ed.)  787 

claiming  as  riparian  owner  on  the  upper  'branch  even  though  the 
branch  flows  into  the  main  stream  only  at  times  of  unusually  high 
water  or  floods.23  And  in  another  case  24  it  was  held  that  a  slough 
owner  could,  as  riparian  proprietor  on  the  slough,  take  water  from 
the  main  stream.25 

What  constitutes  a  watercourse  depends  on  the  same  principles 
as  those  already  discussed.1 

Eiparian  rights  exist  in  definite  known  underground  streams.2 
Riparian  rights  do  not  appertain  to  artificial  streams  except  by 
lapse  of  time.3 

(3d  ed.) 

§  726.  Navigable  Streams.  —  Riparian  rights  exist  in  navigable 
streams,4  though  the  State  owns  the  bed,  and  the  riparian  pro- 
prietor owns  none  of  the  soil  under  the  water;  for  the  right  de- 
pends upon  bordering  on  the  stream  and  owning  land  on  its  banks, 
not  the  bed.  The  leading  case  is  Lyon  v.  Fishmongers'  Company,5 
already  quoted,8  wherein  it  is  further  said  by  Lord  Chelmsf  ord  : 
"Upon  this  second  question  the  Lords  Justices  said  they  were  'un- 
able to  find  any  authority  for  holding  thajt  a  riparian  proprietor 
where  the  tide  flows  and  reflows  has  any  rights  or  natural  easements 
vested  in  him  similar  to  those  which  have  been  held  in  numerous 
cases  to  belong  to  a  riparian  proprietor  on  the  banks  of  a  natural 
stream  above  the  flow  of  the  tide.'  But  with  great  respect,  I  find 

23  Strong   v.   Baldwin    (1908),   154  water  could  not  extend  so  as  to  carry 
Cal.   150,   129   Am.   St.   Rep.   149,   97  riparian  rights  in  the  stream   to   the 
Pac.   178.  land  along  its  borders.     The  only  rea- 

24  Turner  v.  James  Canal  Co.,  155  sonable  conclusion  is  that  no  such  dis- 
Cal.  82,  132  Am.  St.  Rep.  59,  99  Pac.  tinction  exists,  and  that  the  rights  of 
520,  22  L.  R.  A.,  N.  S.,  401,  17  Ann.  all    persons    owning    land    adjoining 
Cas   823  upon   the   stream,    or   upon   any    bay, 

25  The  court  said:  "The  court  finds/  inlet  or  .slou8h  connecting  therewith, 
however,  Mat  Fresno  Slough  is  always  "?  e^al  and  «**tensive  with  those 

>       -iu  *u    Q       T  TO.,/.        °f    persons    owning    land    bordering 

"      the  main  cufrent  or 


into    the    slough,    or    into    the    river 

from  the  slough,  as  one  may  be  higher  1  Supra,  sec.  333  et  seq. 

than  the  other  at  the  particular  time.  2  Infra,  sec.  1077. 

Under    the    circumstances,    we    think  3  Supra,  sec.  51  et  seq. 

that   a   person   owning  land   abutting  4  gmith  v   Q{      Qf  Rochest       92  N 

upon  the  slough  has  an  equal  right  to  y    ^    ^  Am.  Dec.  393,  and  cases 

take   water   therefrom,   and   an   equal  ^/ro 

right    to    a   reasonable    share    of    the 

water,  with  another  person  who  owns  '  L-  R-  *•  APP-  Cas-  6'3>  affirmed 

land  abutting  upon  the  main  stream.  m  North  Shore  Ry.  v.  Pion,  L.  R.  14 

....  No  line  could  be  fixed  beyond  APP-  Cas-  612- 

which  it  could  be  declared   that  the  6  Supra,  sec.  698. 


788  (3d  ed.)     Pt.  IV.    THE  COMMON  LAW  OF  EIPAEIAN  EIGHTS.    §  726 

no  authority  for  the  contrary  proposition,  and  I  see  no  sound  prin- 
ciple upon  which  the  distinction  between  the  two  descriptions  of 
natural  streams  can  be  supported.     And  it  seems  to  me  that  cases 
have  been  decided  which  are  strongly  opposed  to  it.     Why  a  ripa-1* 
rian  proprietor  on  a  tidal  river  should  not   possess  all  the  peculiar 
advantages  which  the  position  of  his  property  with  relation  to  the 
river  affords  him,  provided  they  occasion  no  obstruction  to  the  navi-  : 
gation,  I  am  unable  to  comprehend."     Lord  Cairns,   Chancellor,  * 
said:  "But  the  doctrine    would  be  a  serious  and  alarming  one, 
that  a  riparian  owner  on  a  public  river,  and  even  on  a  tidal  public 
river,  had  none  of  the  ordinary  rights  of  a  riparian  owner,  as  such, 
to  _preserve  the  stream  in  its  natural   condition  for  all  the  usual 
purposes  of  the  land." 

The  California  court  has  said:  "We  see  no  occasion  to  discuss 
the  question  as  to  whether  the  river  is^  navigable  or  not.  In  either 
event  the  result  would  be  the  same.  The  riparian  owner  on  a 
nontidal,  navigable  stream  has  all  the  rights  of  a  riparian  owner 
not  inconsistent  with  the  public  easement."7  And  has  also  up- 
held an  appropriation  upon  a  navigable  stream.8  In  a  Texas  case : 
"As  to  all  streams,  whether  navigable  or  otherwise,  the  right  exists 
to  the  use  of  the  water  for  domestic  purposes,  etc."  "The  riparian 
rights  of  the  owner  of  lands  on  a  navigable  stream  do  not  depend 
upon  his  ownership,  of  the  soil  to  the  center  of  the  stream.0  It 
is  therefore  immaterial  to  the  existence  of  the  right  in  this  State 
that  the  State  has  refused  to  extend  grants  across  streams  thirty 
feet  in  width,  and  has  required  the  grant  to  stop  at  the  margin  of 
such  streams. "  Adding  that  the  right  is  subordinate  to  the  public 
easement  of  navigation.10  The  Texas  case  went  to  the  Texas  su- 
preme court  n  where  the  proprietor's  right  was  not  only  upheld,  but 
the  former  case  was  reversed  for  holding  that  his  use  could  be  de- 
stroyed without  compensation  in  the  improvement  of  navigation. 

7  Heilbron   v.   Fowler   etc.   Co.,    75  469,  22  L.  E.  A.,  N.  S.,  641 ;  Spokane 
Cal.  426,  7  Am.  St.  Eep.  185,  17  Pac.  Co.  v.  Arthur  Jones  Co.,  53  Wash.  37, 
535.  101  Pac.  515;  Lux  v.  Haggin,  69  Cal. 

8  Supra,  sec.  339.  255,  at  387,  10  Pac.  674;  Williams  v. 

9  Citing   Scranton  v.   Wheeler,   179  Fulmer,  151  Pa.  405,  31  Am.  St.  Eep. 
U.  S.  141,  21  Sup.  Ct.  Eep.  48,  45  L.  767,  25  Atl.  103.     In  Nebraska  it  has 
Ed.  126 ;  Gould  on  Waters,  p.  275.  been    doubted    whether    the    riparian 

10  Bingham    Bros.    v.    Port    Arthur  right     of     use     exists    on     navigable 
etc.   Co.    (Tex.   Civ.   App.),   91   S.  W.  streams.     Crawford   v.   Hathaway,   67 
848,  100  Tex.  192,  97  S.  W.  686,  13  Neb.  325,  108  Am.   St.  Eep.   647,  93 
L.  E.  A.,  N.  S.,  656.     See,  also,  Ka-  N.  W.  781,  60  L.  E.  A.  889. 

lama    Co.   v.    Kalama   Co.,   48    Wash.  n  100  Tex.  192,  97  S.  W.  686,  13 

622,  125  Am.   St.   Eep.   948,   94  Pac.       L.  B.  A.,  N.  S.,  656. 


§§727,728    Ch.  31.    WHAT  PERSONS  AND  WHAT  WATEES.    (3d  ed.)  789 

Some  further  presentation  of  the  law  of  navigable  streams  is 
given  elsewhere.12 

(3d  ed.) 

§  727.  Interstate  Streams. — Upon  streams  flowing  from  a  State 
recognizing  riparian .  rights  into  one  denying  them,  the  riparian 
right  has  been  upheld  in  favor  of  proprietors  in  the  former  State.13 

(3d  ed.) 

§  728.  Standing  Water— Lakes— Ponds.14— In  the  House  of 
Lords  15  the  Chancellor  le  recently  said  of  a  dam  built  about  a  rock 
in  a  river:  "The  right  to  maintain  that  artificial  addition  to  the 
rock  may  be  assumed;  but  it  does  not  follow  that  the  addition  to 
the  rock  has  in  any  respect  altered  the  legal  relations  of  the  par- 
ties and  made  what  has  been  part  of  a  running  stream  hitherto,  less 
a  running  stream,  or  turned  it  into  a  pond,  so  that  the  water  in- 
closed within  that  pond  should  become,  not  publici  juris,  but  water 
with  somewhat  of  a  proprietary  right." 

We  refer  to  this  because  it  implies  that  water  in  a  pond  is  water 
with  somewhat  of  a  -proprietary  right,  depending  upon  different 
considerations  than  watercourses,  for,  as  already  discussed,  the  law 
of  watercourses  is  based  on  the  fundamental  consideration  that  the 
corpus  of  the  running  water  is  not  the  subject  of  private  owner- 
ship. If,  then,  the  corpus  of  water  in  a  pond  (not  running,  but 
standing  water)  is  property,  the  basis  of  the  riparian  right  is  gone, 
and  the  analogy  is  rather  to  the  law  of  percolating  water. 

However  this  may  be,  where  the  pond  or  lake  has  an  inlet  or  outlet 
in  a  running  stream,  the  lake  is  regarded  as  but  a  part  of  the 
watercourse,  and  governed  by  the  law  of  watercourses  and  the 
riparian  right  of  use  exists  thereon.17  And  it  has  now  been 
settled  in  California  that  the  rights  of  riparian  owners  on  a  lake 
do  not  differ  from  those  on  streams  so  far  as  concerns  use  of  the 
water.  In  Turner  v.  James  Canal  Co.18  it  was  said  and  held,  per 

-     12  Supra,  sec.  339;   infra,  see.  898.  seems  the  point  of  view  of  the  Eng- 

13  See  supra,  sec.  340  et  seq.  lish  case,  supra,  which  case,  further, 

14  See,  also,  supra,  sec.  346.  so  far  as  it  speaks  of  a  pond,  prob- 

15  White    v.    White,     [1906]    App.  ably  contemplated  an  artificial  pond; 
Cas.  27.  as  to  which  see  supra,  sees.  32,  51  et 

16  Lord  Halsbury.  seq. 

17  Duckworth    v.    Watsonville    etc.  18  155   Cal.   82,   132   Am.    St.   Rep. 
Co.,  150  Cal.  520,  89  Pac.  338,  dictum  59,  99  Pac.  520,  22  L.  R.  A.,  N.  S., 
only;  City  of  Syracuse  v.  Stacey,  169  401,  17  Ann.  Cas.  823. 

N.  Y.  231,  62  N.  E.  354.     Such,  also, 


790  (3d  ed.)    Pt.  IV.    THE  COMMON  LAW  OF  EIPAEIAN  EIGHTS.    §  728 

Mr.  Justice  Shaw:  "No  authority  is  cited  in  favor  of  the  proposi- 
tion that  riparian  rights  exist  only  in  flowing  streams.  After  a 
somewhat  exhaustive  search  we  have  not  succeeded  in  finding  any 
decision  to  that  effect.  That  such  rights  exist  in  any  body  of 
water,  whether  flowing  or  not,  is  shown  by  the  following  quotations 
from  decisions  of  other  States.19  ....  Many  of  these  decisions 
relate  to  rights  in  the  water  other  than  the  use  of  it  for  irrigation, 
but  the  context  shows  that  the  principle  was  considered  a  general 
one  applicable  to  riparian  rights  of  every  description.  .  The  plain- 
tiffs seek  to  found  a  distinction  upon  the  assumed  fact  that  the 
waters  of  a  pond  or  lake  have  no  source  of  supply,  and  that  if  the 
riparian  owner  takes  water  therefrom,  the  water  of  such  lake  or 
pond  will  ultimately  become  exhausted.  It  is  a  mistake  to  suppose 
that  a  permanent  pond  or  lake  has  no  source  of  supply.  There  is  a 
constant  drain  upon  such  a  body  of  water  by  evaporation  into  the 
air  and  sometimes  by  seepage  into  the  surrounding  soil.  If  there 
were  no  supply,  the  lake  or  pond  would  soon  cease  to  exist.  But 
even  in  a  case  of  a  pond  or  lake  caused  by  an  overflow,  which  has 
no  other  source  of  supply,  and  which  by  reason  of  seepage  and 
evaporation  will  soon  disappear,  we  think  it  must  be  conceded  that 
the  riparian  owners  have  a  right  to  the  reasonable  use  of  the  water 
both  for  domestic  purposes  and  for  irrigation  of  the  adjacent  land. 
If  such  right  does  not  exist,  the  water  would  disappear  without  ad- 
vantage to  anyone,  whereas  by  the  use  thereof  it  might  be  made 
of  great  benefit  to  the  adjoining  owners.  We  can  see  no  reason 
why  the  law  should  declare  that  in  such  a  case  all  of  the  adjacent 

19  Citing    1    Farnham    on    Waters,  56,  19  Atl.  93,  7  L.  E.  A.  459 ;  Draper 

sec.  62,  p.  278;  see.  63,  pp.  280,  282;  v.   Brown,    115    Wis.   366,   91    N.   W. 

Turner  v.  Holland,  65  Mich.  466,  33  1001;  Delaplaine  v.  Chicago  etc.  Co., 

N.    W.    283;    Lamprey   v.    State,    52  42  Wis.  214,  24  Am.  Eep.  399;   Bas- 

Minn.   181,  38  Am.   St.  Eep.  541,  53  sett  v.   Salisbury  Co.,  43   N.   H.  578, 

N.  W.  1139,  18  L.  E.  A.  670;  Hardin  82    Am.    Dec.    179.     In    addition    td 

v.  Jardin,  140  U.  S.  371,  11  Sup.  Ct.  these,  reference  may  be  made  also  to 

Eep.  808,  838,  35  L.  Ed.  428 ;  Finley  Auburn  v.  Water  Co.,  90  Me.  586,  587, 

v.   Hershey,   41   Iowa,   393;   Eobinson  38  Atl.  561,  38  L.  E.  A.  188;  Madson 

v.  Davis,  47  App.  Div.  405,  62  J.N.  Y.  T.   Spokane   Valley  L.   &  W.   Co.,   40 

Supp.  444;  Lembeck  v.  Nye,  47  Ohio  Wash.  414,  82  Pac.  719,  6  L.  E.  A., 

St.  354,  21  Am.  St.  Eep.  828,  24  N.  N.  S.,  257;  Kalez  v.  Spokane  etc.  Co., 

E.  686,  8  L.  E.  A.  578  (domestic  and  42  Wash.  43,  84  Pac.  395;   People  v. 

agricultural  uses)  ;  Priewe  v.  Wiscon-  Hulbert,  131  Mich.  156,  91  N.  W.  211, 

sin,  93   Wis.   546,   67   N.  W.   918,  33  64    L.    E.    A.    265;    18    Am.    &    Eng. 

L.  E.  A.  645 ;   Cedar  Lake  H.  Co.  v.  Ency.  of  Law,  135,  139.     "The  rights 

Cedar  C.  etc.  Co.,  79  Wis.  302,  48  N.  of    riparian    owners    upon    lakes    and 

W.  371;   Valparaiso  etc.  Co.  v.  Dick-  ponds    are    the    same    as    upon    other 

over,  17  Ind.  App.  233,  46  N.  E.  591 ;  waters."     Lewis  on  Eminent  Domain, 

Fernald  v.  Knox  Woolen  Co.,  82  Me.  2d  ed.,  sec.  84e. 


§  729         Ch.  31.     WHAT  PERSONS  AND  WHAT  WATERS.     (3d  ed.)  791 

owners  of  land  must  abstain  from  taking  any  of  the  water  and  thus 
allow  it  to  remain  uselessly  in  its  position  until  the  forces  of  nature 
remove  it."  And  also  in  the  same  case:  "There  is  no  decision  in 
this  State  upon  the  subject  of  the  riparian  rights  of  the  owner  of 
land  upon  a  body  of  water  not  flowing.  Nor  is  there  anything 
in  any  of  our  decisions  intimating  that  such  rights  do  not  exist." 
And  held  that,  with  the  limitation  of  reasonable  use,  "the  right  to  use 
water  upon  adjoining  land,  applies  as  well  to  the  water  of  a  lake, 
pond,  slough  or  any  natural  body  of  water,  by  whatever  name  it 
may  be  called,  as  to  a  running  stream. ' ' 

(3d  ed.) 

§  729.  Percolating  Water. — The  law  of  riparian  rights  does 
strictly  not  apply  to  percolating  water,  since  there  can  be  no  ripa- 
rian proprietors  where  there  is  no  watercourse  or  lake  or  pond  or 
other  body  of  water  having  banks.20  Rights  in  percolating  water 
are  separately  considered  later.  The  word  "riparian"  has,  how- 
ever, been  recently  used  with  reference  to  lands  bearing  diffused 
percolating  water.21  and  the  new  California  law  of  percolating 
water  is  very  similar  to  the  law  of  riparian  rights  on  streams.22, 

20  Morrison  v.  Officer,  48  Or.  569,  the    flow    of    the    stream    itself.     In 
87  Pac.  896.  either  case  there  is  a  natural  supply 

21  Cohen  v.  La  Canada  W.  Co.,  151  of  water  of  which  the  lands  by  reason 
Cal.   680,  91  Pac.  584,   11  L.  R.  A.,  of    their   location  ....  have    a    nat- 
N.  S.,  752.  ural    advantage    to    the    use    of    the 

22  Infra,    sees.    1090,    1104.     "The  waters.     Lands    are    invariably    pur- 
conditions  in  all  cases  are  analogous  chased  in  view  of  the  benefits  which 
as  far  as  the  natural  supply  of  waters  they  may  derive  from  being  riparian 
is   available   for   use   upon   the   lands  to  a  stream  or  overlying  well-supplied 
concerned,  whether  the  lands  be  ripa-  strata  of  water,  the  right  to  the  flow 
rian    to    the    stream    or    overlying    a  or  extraction  of  which  is  a  part  and 
common     subterranean   .stratum,     or  parcel   of   the   land."     Miller   v.   Bay 
whether    the    underlying    strata    are  Cities  W.  Co.,  157  Cal.  256,  107  Pac. 
connected  and  supplied  directly  from  115. 

§§  730-738.     (Blank  numbers.), 


792  (3d  ed.)    Pt.  IV.    THE  COMMON  LAW  OF  RIPARIAN  RIGHTS.    §  739 


CHAPTER  32. 

LIMITATIONS    ON   USB    BETWEEN    RIPARIAN    PROPRI- 
ETORS THEMSELVES  FOR  THEIR  OWN  LANDS. 

REASONABLE  USB. 

A.     CLASSIFICATION  OP  USES. 
§  739.     Equality  of  riparian  owners. 
§  740.     Natural  uses — (Use  to  support  life). 
§  741.     Origin  of  th«  term  "natural  uses." 
§  742.     Irrigation  not  within  this  class. 
§  743.     Artificial  uses — (Business  uses). 

§  744.     Same. 

B.     REASONABLE  USB. 

§  745.  Reasonable  use  generally. 

§  746.  Reasonable   use   for  power   purposes. 

§  747.  Same — In  California. 

§  748.  Reasonable  use  for  irrigation. 

§  749.  Same — Turner  v.  James  Canal  Co. 

§  749a.  Same. 

§  750.  Reasonable  use  (Concluded). 

C.  APPORTIONMENT. 
5  751.     Apportionment. 

§  752.     Apportionment  is  an  equitable  remedy. 
§  753.     Confined  to  the  parties  litigant. 

D.  MISCELLANEOUS. 
§  754.     Manner  of  use. 

§  755.     Return  of  surplus. 

§  756.     Possibility  for  a  Riparian  Administrative  System. 

§§  757-764.     (Blank  numbers.) 

A.     CLASSIFICATION  OF  USES. 

(3d  ed.) 

§  739.  Equality  of  Riparian  Owners. — Since  nonriparian  lands 
have  no  access  to  the  stream,  they  are,  so  far  as  concerns  the  present 
chapter,  excluded  from  the  natural  resource,  and  the  present  chap- 
ter refers  only  to  riparian  owners  as  between  themselves ;  physical 
conditions  exclude  all  other  lands  from  access  to  the  stream  in  its 
natural  position. 

The  water  in  the  stream  belongs  to  no  one — it  is  not,  and  cannot 
be,  while  flowing  in  its  natural  course,  the  subject  of  ownership  by 
anyone.1  But  each  riparian  owner  has  a  right  to  the  use  of  his  own 

i  Supra,  sec.  2  et  seq. 


§  739  Ch.  32.     REASONABLE  RIPARIAN  USE.         (3d  ed.)  793 

land,  and  since  all  riparian  proprietors,  by  their  nataral  situation1 
in  contact  with  the  stream,  have  an  equal  right  of  access  to  the 
water,  they  have  an  equal  right  of  use  for  their  own  lands,  which  no 
one  of  them  may  unreasonably  violate.  The  waters  of  a  stream 
are  "a  common  supply,  to  which  all  who,  by  their  natural  situation, 
have  access  to  it  have  a  common  right,  and  of  which  they  may  make 
a  reasonable  use  upon  the  land  so  situated,"  and  "all  the  parties 
having  access  to  it  would  have  the  right  to  share  reasonably  in  its 
use."2  In  a  reasonable  use  of  one's  own  land  the  damage  to  the1 
other  is  damnum  absque  injuria,  but  in  excess,  the  damage  is  wrong- 
ful. There  is  a  perfect  equality  of  right  among  all  the  proprietors, 
said  Justice  Story.3 

It  is  a  "common  right"  in  the  sense  that  the  corpus  of  the  water 
is  the  property  of  no  one,  and  therefore  "common"  in  the  purely 
negative  sense  that  all  riparian  owners  are  equally  entitled  to  the 
benefits  which  it  does  or  may  give  their  own  land;  as  it  has  been 
said^  *rTTiere  is  a  linement  out  of  which  every  man  shall  have  a 
benefit."4  A  riparian  proprietor  on  whose  land  a  stream  rises 
has  no  greater  right  than  other  riparian  proprietors.5  Nor  has 
one  who  first  used  the  water.6  The  rights  of  the  riparian  pro- 
prietors are  correlative,  as  contrasted  with  the  exclusive  right  ob- 
tained by  appropriation.  "The  property  interest  in  the  water  is 
usufructuary,  and  his  right  thereto  is  subject  to  many  limitations 
and  restrictions,  and  always  depends  upon  its  reasonableness  when 
considered  in  connection  with  a  like  right  as  belonging  to  all  other 

2  Hudson  v.  Dailey,   156   Cal.   617,  rian   proprietors  are  tenants   in  com- 
105  Pac.  748.  mon,  for  the  law  of  tenancy  in  com- 

3  Tyler  v.  Wilkinson,  4  Mason,  397,  mon    has    no    application.     Senior    v. 
Fed.     Cas.     No.     14,312.     See,     also,  Anderson,   138   Cal.    716,   at   723,   72 
Thornton,  J.,  in  Anaheim  W.   Co.  v.  Pac.  349.     See,  however,  Charnock  T. 
Semi-Tropic  W.  Co.,  64  Cal.  185.  196,  Higuerra,   111   Cal.   473,   52   Am.   St. 
30   Pac.   623;    Lone   Tree   Co.   v.   Cy-  Rep.   195,   44  Pac.   171,  32  L.  R.   A. 
clone   Co.    (S.   D.),    128   N.   W.   596;  190;      Pratt     v.     Lamson,     2     Allen 
Pugh  v.  Wheeler,  19  N.  C.  (2  Dev.  &  (Mass.),   289;    Roberts   v.   Claremont 
B.)   50   (Ruffin,  C.  J.).     "The  theory  Co.,  74  N.  H.  217,  24  Am.  St.  Rep. 
of  the  law  of  riparian  rights  in  this  962,  66  Atl.  485. 

State  is  that  the  water  of  a  stream  5  Barneich  v.  Mercy,  136  Cal.  206, 

belongs  by  a  sort  of  common  right,  to  68   Pac.    589;    Geddish   v.   Parrish,   1 

the  several  riparian  owners  along  the  Wash.  St.  587,  21  Pac.  314;   Nielson 

stream,   each   being   entitled   to   sever  v.  Sponer,  46  Wash.  14,  123  Am.  St. 

his    share    for    use    on    his    riparian  Rep.    910,    89    Pac.    155;    Dudden   v. 

land."     Mr.  Justice  Shaw  in  Anaheim  Clutton    Union    (1857),    1    H.    &.  N. 

W.    Co.    v.   Fuller,    150    Cal.    327,    88  627;  Bunting  v.  Hicks   (1894),  70  L. 

Pac.   978.  T.  455;    Mostyn  v.  Atherton   (1899), 

4  Crew,  C.  J.,  in   Shury  v.  Pigott,  2  Ch.  361. 

Poph.    169,    79    Eng.    Reprint,    1263.  6  Supra,  sec.  670. 

It  is  erroneous  to  say  that  the  ripa- 


794  (3d  ed.)    Pt.  IV.    THE  COMMON  LAW  OF  EIPAKIAN  RIGHTS.    §  739 

riparian  proprietors.  His  use  must  be  ^reasonable,  whatever  may 
be  its  purpose ;  and  he  may  not,  under  any  circumstances,  by  his 
use,  materially  damage  other  proprietors,  either  above  or  below 
him."7 

The  classical  statement  of  this  equality  of  right  among  riparian 
owners  is.  that  made  by  Justice  Story  in  Tyler  v.  Wilkinson.8 
Each  proprietor,  he  says,  has  an  equal  right  to  the  advantage  of 
the  flow  of  the  stream.  ' '  But,  strictly  speaking,  he  has  no  property 
in  the  water  itself,  but  a  simple  use  of  it  while  it  passes  along. 
The  consequence  of  this  principle  is,  that  no  proprietor  has  a  right 
to  use  the  water  to  the  prejudice  of  another This  is  the  nec- 
essary result  of  the  perfect  equality  of  right  among  all  the  pro- 
prietors of  that-  which  is  common  to  all.  The  natural  stream  ex^~ 
isting  by  the  bounty  of  Providence  for  the  benefit  of  the  land 
through  which  it  flows  is  an  incident  annexed  by  operation  of  law 
to  the  land  itself.  When  I  speak  of  this  common  right,  I  do  not 
mean  to  be  understood  as  holding  the  doctrine  that  there  can  be  no 
diminution  whatsoever  by  a  riparian  proprietor  in  the  use  of  the 
water  as  it  flows,  for  that  would  be  to  deny  any  valuable  use  of  it. 
There  may  be,  and  there  must  be,  allowed  to  all,  of  that  which  is 
common,  a  reasonable  use.  The  true  test  of  the  principle  and  extent 
of  the  use  is,  whether  it  is  to  the  injury  of  the  other  proprietors 
or  not.  There  may  be  a  diminution  in  quantity,  or  a  retardation 
or  acceleration  of  the  natural  current  indispensable  for  the  general 
and  valuable  use  of  the  water,  perfectly  consistent  with  the  com- 
mon right.  The  diminution,  retardation,  or  acceleration,  not/posi- 
tively  and  sensibly  injurious,  by  diminishing  the  value  of  the  com- 
mon right,  is  an  implied  element  in  the  right  of  using  the  stream 
at  all.9  The  law  here,  as  in  many  other  cases,  acts  with  reasonable 
reference  to  the  public  convenience  and  general  good,  and  is  not 
betrayed  into  narrow  strictures  subversive  of  common  sense,  nor 
into  an  extravagant  looseness  which  would  destroy  private  rights. 
The  maxim  is  applied,  sic  utere  tuo  ut  alienum  non  laedas." 

The  attitude  of  the  passage  is  summed  up  in  the  closing   sen- 
tences. 

7  Crawford  v.  Hathaway,   67  Neb.          8  4    Mason,    397,    Fed.    Cas.    No. 
325,  108  Am.  St.  Rep.  647,  93  N.  W.       14,312.     Italics  ours. 

781,  60  L.  R.  A.  889.     Citing  Union  9  Note  that  he  does  not  Sa7  "sen' 

,,.,,    «•»•••_•        o  -rv  /o        sibly  diminishing  the  flow";  he  is  ex- 

Mill  &  Mining  Co.  v.  Dangberg    (C.       prjgly   denyin/that/and  'says   «sen. 

C.),  81  Fed.  73;  Williamson  v.  Lock's  sib]y  diminishing  the  value  of  the 
Creek  Canal  Co.,  78  N.  C.  156.  common  right." 


Ch.  32.     REASONABLE  RIPARIAN  USE.         (3d  ed.)  795 


What  is  such  unreasonable  interference  has  become  defined  by  re- 
peated decision  of  particular  cases,  crystallizing  into  some  rules. 
The  chief  classification  is  between  natural  uses  and  artificial  uses.10 

(3d  ed.) 

§  740.  Natural  Uses — (Use  to  Support  Life). — Natural  uses 
are  those  arising  out  of  the  necessities  of  life  on  the  riparian  land, 
such  as  household  use,  drinking,  watering  domestic  animals.  For 
these  purposes  the  riparian  owner  may  take  the  whole  stream  if 
necessary,  leaving  none  to  go  down  to  lower  riparian  proprietors.11 


10  Wiggins  v.  Muscupiabe  etc.  Co., 
113  Cal.  182,  54  Am.  St.  Rep.  337,  45 
Pac.   160,   32   L.   R.   A.   667;    Lux   v. 
Haggin,  69  Cal.  255,  at  408,  10  Pac. 
€74;    Lone    Tree   Co.    v.    Cyclone   Co. 
(S.   D.),   128   N.  W.   596;   Lawrie  v. 
Silsby,  82  Vt.  505,  74  Atl.  94. 

Lord  Macnaghten,  in  McCartney 
v.  Londonderry  Railway,  [1904]  App. 
Cas.  301,  said:  "There  are,  it  seems 
to  me,  three  ways  in  which  a  person 
whose  lands  are  intersected  or 
bounded  by  a  running  stream  may 
use  the  water  to  which  the  situation 
of  his  property  gives  him  access." 
These  ways,  he  says,  are:  First, 
primary  uses  for  which  he  may  take 
the  whole  stream ;  second,  other  uses 
connected  with  or  incident  to  his 
land  with  regard  to  which  his  use 
is  limited;  and  third,  uses  foreign  to 
his  land  as  to  which  he  has  no  right 
at  all. 

11  California. — Lux   v.   Haggin,    69 
Cal.    255,    at    395    and   407,    10    Pac. 
674;   Crandall  v.  Woods,  8   Cal.   138, 

I  Morr.   Min.   Rep.   604;   Bear  River 
Co.  v.  York  Co.,  8  Cal.  333,  68   Am. 
Dec.    325,    4    Morr.    Min.    Rep.    526; 
Ferrea  v.  Knipe,  28  Cal.  340,  87  Am. 
Dec.    128;    Hale    v.    McLea,    53    Cal. 
578;   Swift  v.  Goodrich,  70  Cal.  103, 

II  Pac.   561;    Stanford   v.    Felt,    71 
Cal.  249,  16  Pac.  900;  Gould  v.  Staf- 
ford, 77   Cal.   66,  18  Pac.  879;    Alta 
etc.   Co.  v.   Hancock,  85  Cal.  219,  20 
Am.  St.  Rep.  217,  24  Pac.  645 ;  Chau- 
vet    v.    Hill,    93    Cal.    407,    28    Pac. 
1066;  Wiggins  v.  Muscupiabe  etc.  Co., 
113   Cal.    182,   54   Am.   St.   Rep.   337, 
45  Pac.  160,  32  L.  R.  A.  667;  Smith 
v.  Corbit,  116  Cal.  587,  48  Pac.  725; 
Temple,   J.,   in   Katz   v.   Walkinshaw, 
141    Cal.    116,    99    Am.    St.    Rep.    35, 
70  Pac.  663,   74   Pac.   766,   64  L.  R. 


A.  236;  Duckworth  v.  Watsonville 
etc.  Co.,  150  Cal.  520,  89  Pae.  338. 

Colorado. — Broadmoor  etc.  Co.  v. 
Brookside  etc.  Co.,  24  Colo.  541,  52 
Pac.  792  (dictum  only,  as  the  law  of 
riparian  rights  is  not  enforced  in  this 
State.  Supra,  sec.  118). 

Nebraska — Crawford  Co.  v.  Hath- 
away, 67  Neb.  325,  108  Am.  St.  Rep. 
647,  93  N.  W.  781,  60  L.  R.  A.  889. 

Oregon. — Hough  v.  Porter,  51  Or. 
318,  95  Pac.  732,  98  Pac.  1083,  3.02 
PJUC.  728. 

Texas. — Rhodes  v.  Whitehead,  27 
Tex.  304,  310,  84  Am.  Dec.  631; 
Baker  v.  Brown,  55  Tex.  377;  Bar- 
rett v.  Metcalfe,  12  Tex.  Civ.  App. 
247,  33  S.  W.  759. 

Washington. — Nielson  v.  Sponer, 
46  Wash.  14,  123  Am.  St.  Rep.  910, 
89  Pac.  155;  McEvoy  v.  Taylor 
(1909),  56  Wash.  357,  105  Pac.  851. 

Miscellaneous. — Union  Min.  Co.  .  v. 
Dangberg,  81  Fed.  73 ;  Evans  v.  Mer- 
riweather,  3  Scam.  (111.),  496,  38  Am. 
Dec.  106;  Wadsworth  v.  Tillotson,  15 
Conn.  366,  39  Am.  Dec.  391;  Penn- 
sylvania Ry.  Co.  v.  Miller,  112  Pa. 
41,  3  Atl.  780;  Clark  v.  Pennsylvania 
Ry.,  145  Pa.  438,  27  Am.  St.  Rep. 
710,  22  Atl.  990;  Anderson  v.  Cin- 
cinnati L.  Ry.,  86  Ky.  44,  9  Am.  St. 
Rep.  263,  5  S.  W.  49 ;  Young  v.  Barn- 
kier  etc.  Co.  (H.  of  L.),  [1893]  App. 
Cas.  691;  Slack  v.  Marsh,  11  Phila. 
543;  Hopper  v.  Hopper,  146  Pa.  365; 
23  Atl.  321;  Lawrie  v.  Silsby  (1909), 
82  Vt.  505,  74  Att.  94;  Spence  v. 
McDonough,  77  Iowa,  460,  42  N.  W. 
371;  Anderson  v.  Cincinnati  Ry.,  86 
Ky.  44,  9  Am.  St.  Rep.  263,  5  S.  W. 
49;  Blanchard  v.  Baker,  8  Me.  253, 
23  Am.  Dec.  504;  Chatfield  v.  Wilson, 
31  Vt.  358 ;  McElvoy  v.  Goble.  '  6 
Ohio  St.  187;  Union  etc.  Co.  v.  Fer- 
ris, 2  Saw.  176,  Fed.  Cas.  No.  14,371, 


796  (3d  ed.)    Pt.  IV.    THE  COMMON  LAW  OF  EIPABIAN  EIGHTS.    §  740 

Some  quotations  may  be  given  to  this  effect.  In  a  very  early 
California  case  12  it  was  said :  ' '  The  use  of  the  water  of  a  stream  for 
domestic  purposes  and  for  watering  cattle  necessarily  diminishes 
the  volume  of  the  stream.  This  is  unavoidable,  and  though,  by 
reason  of  such  diminution,  a  proprietor  on  the  stream  below  fails 
to  receive  a  supply  commensurate  with  his  wants,,  he  is  without 
remedy."  13  In  Lux  v.  Haggin  it  is  said:  "So  far  as  the  question 
may  be  supposed  to  imply  that  an  upper  proprietor  may  not  'es- 
sentially' diminish  the  water  by  using  it  for  domestic  purposes,  and 
for  watering  cattle,  the  weight  of  authority  is  that  he  may,  if  neces- 
sary, consume  all  the  water  of  the  stream  for  those  purposes.  Such 
is  the  California  rule.  Indeed,  in  case  of  a  small  rivulet,  the  nec- 
essary consequences  of  using  it  at  all,  by  one  or  more  upper  owners, 
for  these  'natural'  or  'primary'  purposes,  must  often  be  to  exhaust 
the  water."14  In  another  California  case:  "It  appears  to  be  law 
that  where  all  the  water  of  a  stream  is  needed  for  domestic  pur- 
poses and  for  watering  cattle  and  is  thus  consumed  by  one  pro- 
prietor, the  law  allows  such  use. " 15  In  a  Texas  case :  "  A  lower 
proprietor  cannot  complain  that  one  above  uses  the  water  of  a 
stream  for  ordinary  purposes,  even  though  the  water  is  thus  ex- 
hausted. "16  The  leading  expression  is  in  a  well-known  English 
case:  "By  the  general  law  applicable  to  running  streams,  every 
riparian  proprietor  has  a  right  to  what  may  be  called  the  ordinary 
use  of  the  water  flowing  past  his  land ;  for  instance,  to  the  reason- 
able use  of  the  water  for  his  domestic  purposes  and  for  his  cattle, 

8  Morr.  Min.  Eep.  90;  People  v.  Hul-  the  following  passage  from  a  Mary- 

bert,  131  Mich.  156,  100  Am.  St.  Eep.  land     decision    is     quoted    with     ap- 

588,  91  N.  W.  211,  64  L.  E.  A.  265;  proval:    "We   must   confess    that   the 

Hazeltine   v.    Case,    46    Wis.    391,   32  right  of  a  man  to  cultivate  his  own 

Am.  Eep.  715,  1  N.  W.  66;  Pomeroy  fields,  and  to  pasture  his  cattle  on  his 

on   Eiparian   Eights,   sees.    129,   134;  own  land,  is  of  an  original  and  pri- 

30   Am.    &   Eng.    Ency.    of   Law,    2d  mary  character,  and  that  it  would  be 

ed.,   (b)  pp.  358,  359,  note  1.  oppressive  to  interfere  with  the  free 

12  It   was    laid   down   also   in   still  exercise  of  it,  except  under  a  neces- 
earlier  cases  cited  supra.  sity  caused  by  grave  public  consider- 

13  Ferrea  v.  Knipe,  28  Cal.  341,  87  ations.     The     washings     from     culti- 
Am.  Dec.  128.  vated     fields     might,     and     probably 

14  Lux  v.  Haggin,  69  Cal.  255,  10  would,    carry    soil    and    manure    into 
Pac.  674.  streams    of    water,    and    make    them 

15  Stanford  v.'Felt,  71  Cal.  249,  at  muddy  and  impure;  and  so  the  habits 
251,  16  Pac.  900.     As  to  this  opinion,  of  cattle,   according  to   their  natural 
see   Wiggins   v.   Muscupiabe   Co.,   113  instincts,   would   lead   them   to    stand 
Cal.    189,    54   Am.    St.   Eep.    337,   45  in  the  water  and  befoul  the  stream; 
Pac.  160,  32  L.  E.  A.  667.  but,   nevertheless,   the   owners   of   the 

16  Barrett  v.  Metcalf,  12  Tex.  Civ.  land  must  not  lose  the  beneficial  use 
App.  247,  33  S.  W.  759.     In  a  Wash-  of  it."     Helfrich  v.   Cantonsville  etc. 
ington      case      (McEvoy     v.      Taylor  Co.,  74  Md.  269,  28  Am.  St.  Eep.  245, 
(1909),  56  Wash.  357,  105  Pac.  851),  22  Atl.  72;  13  L.  E.  A.  117   (adding 


§740 


Ch.  32.     SEASONABLE  RIPARIAN  USE.         (3d  ed.)  797 


and  this  without  regard  to  the  effect  which  such  use  may  have, 
in  case  of  a  deficiency,  upon  proprietors  lower  down  the  stream."  1T 
The  civil  law  also  gave  a  preference  to  domestic  uses.18 
Where  a  stream  is  small  and  does  not  furnish  water  more  than 
sufficient  to  supply  the  natural  wants  of  the  different  proprietors 
living  on  it,  it  has  been  held  that  none  of  the  proprietors  is  en- 
titled to  use  the  water  for  manufacturing  purposes,19  nor  for  irriga- 
tion.20 Nevertheless  it  may  be  a  question  whether  the  preference 
of  "natural  uses"  can  be  invoked  by  a  lower  against  an  upper  use 
for  "artificial"  purposes,  such  as  irrigation,  or  whether  it  is  one 
which  only  upper  owners  can  invoke  against  those  below;  in  other 
words,  whether  it  is  an  advantage  of  natural  position  enabling  the 
physical  taking  of  the  water  for  these  uses  against  those  below,  or 
whether  it  will  be  enforced  also  by  injunction  against  those  above.21 


that  he  must  not  wantonly  or  reck- 
lessly harass  lower  users). 

n  Miner  v.  Gilraour  (1858),  12 
Moore  P.  C.  131,  14  Eng.  Reprint, 
861,  approved  recently  in  White  v. 
White,  [1906]  App.  Cas.  72.  In  an- 
other English  case  it  is  said:  "As  to 
riparian  proprietors  there  is  no  ques- 
tion, I  think,  about  the  law  upon 
th"e  subject  ....  that  a  riparian 
proprietor  has  the  paramount  right 
to  take  what  water  he  likes  from  the 
river  for  usual  domestic  purposes.  I 
do  not  say  how  widely  the  term  'do- 
mestic purposes'  may  extend.  Un- 
questionably it  would  extend  to  culin- 
ary purposes  and  to  purposes  of 
cleansing,  washing,  the  feeding  and 
supplying  of  an  ordinary  quantity  of 
cattle,  and  so  on."  Lord  Romilly,  in 
Attorney  General  v.  Great  Eastern 
Ry.  Co.,  23  L.  T.,  N.  S.,  344,  affirmed 
L.  R.  6  Ch.  572. 

It  could  not  be  said  to  have  taken 
actual  shape  in  the  English  common 
law  until  Miner  v.  Gilmour,  supra, 
decided  in  1858,  concerning  which  it 
has  been  said:  "This  distinction  be- 
tween the  ordinary  and  extraordinary 
use  of  water  appears  for  the  first 
time  in  the  judgment  of  Lord  Kings- 
down  in  the  above-cited  case  of  Miner 
v.  Gilmour,  and  no  authority  is  there 
cited  for  it.  It  seems  never  to  have 
been  acted  upon  in  any  reported  case, 
but  it  has  been  so  consistently  ap- 
proved in  subsequent  judicial  dicta 
that  it  may  be  taken  to  have  ob- 
tained a  secure  place  in  the  law." 
Salmond  on  Torts,  p.  259.  In  Amer- 


ica, however,  it  had  been  recognized 
earlier.  Thus  it  ia  given  by  Gib- 
son, C.  J.,  in  an  early  Pennsylvania 
case  (Mayor  v.  Commissioners  of 
Snring  Garden,  quoted  supra,  sec.  4), 
wuere  it  is  expressly  based  on  civil- 
law  authorities.  Angell  on  Water- 
courses, section  121,  says  the  distinc- 
tion of  natural  uses  originated  in 
the  Illinois  case  of  Evans  v.  Merri- 
weather,  3  Scam.  496,  38  Am.  Dec. 
106,  decided  in  1842 ;  but  it  seems 
more  probable  that  .Lord.  Kingsdown 
took  it  from  the  civil  law  and  cer- 
tain early  common-law  expressions  be- 
low noted.  See  Lux  v.  Haggin,  69 
Cal.  406,  10  Pac.  674,  regarding  the 
Illinois  case. 

18  Vinnius    says,    "Aqua    profluens 
ad   lavandum   et  potandum   unicuique 
jure  naturali  eoncessa" ;   and  Grotius 
says,  "At  idem  flumen,  qua  aqua  pr> 
fluens  vocatur,  commune  mansit,  nimi- 
rum  ut  bibi  hauririque  possit."     Gro- 
tius, lib.   II,   cap.   II,   sec.  XII. 

19  Evans  v.  Merriweather,  4  111.   (3 
ScamO  492,  38  Am.  Dec.  106;  Lawrie 
v.  Silsby   (1909).  82  Vt.  505,  74  Atl. 
94. 

20  Baker  v.  Brown  (1881),  55  Tex. 
377;     Gould    on    Waters,    sec.     205; 
Black's  Pomeroy  on  Water  Rights,  sec. 
140 ;  Union  Min.  Co.  v.  Dangberg,  81 
Fed.  73;  Hough  v.  Porter,  51  Or.  318, 
95  Pac.   732,  98  Pac.  1083,  102  Pac. 
728. 

21  Consider,  for  example,  the  opin- 
ion in  Lone  Tree  Co.  v.  Cyclone  Co. 
(S.  D.),  128  N.  W.  596. 


798  (3d  ed.)    Pt.  IV.    THE  COMMON  LAW  OP  EIPARIAN  EIGHTS.    §  741 


Instances  of  what  have  been  held  within  the  term  "domestic 
uses"  are  given  in  the  note.22  The  term  is  not  confined  to  uses 
known  when  riparian  rights  began.23 

The  preference  has  strong  application  in  the  law  of  pollution — 
any  pollution  for  an  "artificial"  use,  such  as  mining,  which  impairs 
domestic  use,  is  absolutely  prohibited.24 

(3d  ed.) 

§  741.  Origin  of  the  Term  "Natural  Uses."— The  term  "nat- 
ural uses"  is  probably  based  on  the  idea  running  through  other 
branches  of  the  common  law,  that  there  is  such  a  thing  as  an  "  ordi- 
nary" or  "natural"  or  elemental  use  of  land;  a  use,  so  to  speak, 
for  which  nature  intended  it,  in  contrast  with  other  uses  to  which 
land  is  put.  If,  in  using  the  land  in  the  natural  or  ordinary  way, 
damage  follows  to  a  neighbor,  it  is  not  wrongful  at  law;  it  is 
damnum  absque  injuria.  The  damage  lies  where  nature  makes  it 


22  See  Kimball  v.  Northeast  Har- 
bor Co.  (Me.),  78  Atl.  865.  The  Eng- 
lish cases  below  cited  were  usually  de- 
cided in  reference  to  the  construction 
of  the  term  "domestic  use"  in  certain 
English  statutes,  and  not  specifically 
in  the  present  connection. 

Watering  a  garden,  and  irrigation 
on  a  small  extent  to  supply  produce 
for  family  consumption  on  the  land. 
Bristol  W. 'Co.  v.  Uren,  15  Q.  B.  D. 
637,  52  L.  T.  655;  Hough  v.  Porter, 
51  Or.  318,  95  Pac.  732,  98  Pac.  1083, 
102  Pac.  728  (but  not,  to-day,  irriga- 
tion on  a  commercial  scale.  Hough 
v.  Porter,  supra.  See,  also,  infra,  sec. 
742). 

Brewing  for  family  use;  washing  of 
carriages  (Wilts  etc.  Canal  v.  S win- 
don  W.  Co.,  El.,  Bl.  &  El.  176; 
Holmes'  Notes  to  3  Kent's  Commen- 
taries, 14th  ed.,  p.  688)  ;  or  washing 
a  motor  car.  (Harrogate  Corpora- 
tion v.  Mackay  (1907),  2  K.  B.  611.) 

Supply  for  a  "boarding-school  (Fred- 
erick v.  Bognor  W.  Co.  (1908),  78 
L.  J.  Ch.  40,  72  J.  P.  501,  25  T.  L. 
R.  31)  ;  but  not  for  large  asylums 
(infra,  see.  743  et  seq.). 

Keeping  hogs  in  a  yard  upon  a  small 
running  stream,  though  the  hogs  so  be- 
foul the  water  that  the  lower  proprietor 
could  not  use  the  water  for  culinary 
purposes.  Hazeltine  v.  Case,  46  Wis. 
391,  32  Am.  Rep.  715,  1  N.  W.  66. 
Sed  gu. 


The  purposes  for  which  natural 
uses  may  be  claimed  have  been  ex- 
tended in  Scotch  cases  to  include  "the 
supplying  a  cistern  for  malting  eight 
bolls  of  barley  in  a  barn";  that  is  to 
say,  to  include  brewing  for  domestic 
use  (Johnstone  v.  Ritchie  (1822),  1 
S.  327  (304)  Scotch),  but  the  at- 
tempt to  stretch  them  to  legitimize  a 
pipe  for  the  supply  of  a  distillery  re- 
ceived no  countenance  and  was  aban- 
doned. (Ogilvy  v.  Kincaid  (1791), 
Baron  Hume's  Report  (Scotch),  Dec. 
508.)  It  would  appear  that  they  do 
not  include  the  supply  of  water- 
closets,  but  in  a  Scotch  case  where 
views  to  this  effect  were  indicated, 
the  circumstances  were  special,  says 
Ferguson  on  The  Law  of  Water  in 
Scotland,  p.  239. 

23  "The    meaning    of    the    rule    is    i 
this — if  the   stream   be   shrunk  to   so 
slender  a   thread,   that   there   is   only 

a   glass   of   water,    the    riparian   pro-      \ 

prietor    may   take    it    all This 

water  is  used  for  domestic  purposes. 
The  moment  you  come  to"  using  any-  J  \ 
thing    for    trade,,    you    are    on    new[| 
ground.     But     assuming     objects'~^of" 
domestic  use,  you  are  not  confined  to       / 
those  which  were  known  at  the  time  / 
when     riparian     rights     commenced." 
Lord  Norbury  v.  Kitchin.   9  Jur.,  N. 
S.,   132.     See,  also,  Hough  v.  Porter, 
51  Or.  318,  95  Pac.  732,  98  Pac.  1083, 
102  Pac.  728. 

24  Supra,  sec.  523,  pollution. 


§  741  Ch.  32.     REASONABLE  EIPAEIAN  USE.         (3d  ed.)  799 

fall.  What  is  such  a  natural  use  of  land  was  examined  in  the 
well-known  case  of  Rylands  v.  Fletcher,25  arriving  at  the  conclusion 
that  building  a  reservoir  on  it  was  not  a  natural  use,  and  damage 
to  another  resulting  from  a  break  and  escape  of  the  water  cannot 
be  defended,  it  was  held.  Lord  Cairns,  Chancellor,  said  that  "if, 
in  what  I  may  term  the  natural  user  of  that  land,"  damage  had 
"by  the  operation  of  the  laws  of  nature"  happened  to  a  neighbor, 
the  neighbor  could  not  have  complained  that  that  result  had  taken 
place.  "On  the  other  hand,  if  the  defendants,  not  stopping  at  the 
natural  use  of  their  close,  had  desired  to  use  it  for  any  purpose 
which  I  may  term  a  non-natural  use,"  then  the  neighbor  could 
complain  of  the  damage.1  The  same  seems  the  origin  of  the  term 
"natural  uses"  in  the  use  of  waters.  Living  upon  the  land  is  a 
"natural"  use  of  it,  and  a  use  of  the  water  for  the  necessities  of 
life  of  those  living  there  is  a  taking  for  a  natural  use  of  the  land 
in  which  case  damage  following  to  lower  proprietors  will  not  be 
regarded.  "Besides,  everything,  as  it  serveth  more  immediately 
or  more  merely  for  the  food  and  use  of  man  (as  shall  be  said  here- 
after) hath  the  precedent  dignity  before  any  others,"  says  Lord 
Coke2  with  regard  to  waters.  And  another  old  authority  says: 
"It  is  also  a  thing  of  necessity  for  the  watering  of  cattle."3  So, 
though  the  whole  stream  be  consumed  for  drinking  or  household 
use  or  watering  domestic  animals,  it  is  damnum  absque  injuria  be- 
cause done  in  the  natural  use  of  the  land.  It  is  the  same  idea  as 
that  in  Mr.  Justice  Temple's  opinion  in  Katz  v.  Walkinshaw,4 
concerning  percolating  water,  limiting  the  cases  where  the  percolat- 
ing water  may  be  taken  to  the  damage  of  a  neighbor  to  those  cases 
where  the  taking  is  for  the  purpose  of  the  ordinary  use  of  the  land 
of  the  taker.  It  deals  with  the  fitness  of  purpose  of  the  party 
causing  the  damage,  and  regards,  proper  purpose  in  justification 
or  excuse  for  the  damage  so  that  it  becomes  damnum  absque  in- 
juria.5 

25  L.  E.  3  H.  L.  330.  2  Coke  on  Littleton,  lib.  1,  cap.  1, 

l  This    classification    of   uses    (and  sees.  1,  4a. 

Lord  Cairns'  opinion)   is  disapproved  3  Shury   v.   P'iggott,   3   Bulst.   339, 

in  Brown  v.  Collins,  53  N.  H.  442,  16  gi  Eng.  Eeprint,  280. 
Am.  Rep.  372,  saying  that  there  are 

no  uses  that  can  be  called  "natural"  4  Jn   P^    flM  %A  Pat    7fi«    «7  TP' 

any      more     than      others.     "Natural  ^5,  70  Pac.  663,  74  Pac.  766,  64  L. 

rights  are,  in  general,  legal  rights." 

See,     also,     Hurdman     v.     Railway  *>  See  Fisher  v.  Feige   (1902),  137 

(1878),   3   C.   P.   D.   174;   Ballard   v.  Cal.  42,  92  Am.  St.  Rep.  77,  69  Pac. 

Tomlinson   (1885),  29   Ch.  D.   115.  618,  59  L.  E.  A.  333.     See  infra,  sec. 

See  supra,  sec.  709,  natural  right.  1119. 


800  (3d  ed.)    Pt.  IV.    THE  COMMON  LAW  OF  EIPARIAN  RIGHTS.    §  741 

Whether  or  not  this  is  the  true  origin  of  the  classification  into 
natural  and  artificial  uses,  it  is  coming  now  to  be  regarded  that 
the  distinction  is  a  rule  as  to  what  is  reasonable,  not  alone  in  its 
purpose  (as  the  foregoing  authorities  say),  but  also  in  its  degree  of 
damage,  as  in  the  next  section.  For  the  support  of  life  it  will 
usually  be  found  reasonable  to  disregard  the  degree  of  damage,  and 
to  take  the  whole  stream,  but  it  is  coming  to  be  regarded  as  not  a 
hard-and-fast  rule,  if  the  facts  of  each  case  do  not  bear  it  out.6  In 
Lux  v.  Haggin  7  it  is  said:  "Even  the  use  of  water  of  a  stream  for 
potation  may  not  be  of  paramount  importance,  when  the  stream  is 
small,  and  the  particular  proprietor  is  amply  supplied  with  water 
for  such  purpose  by  living  springs  independent  of  the  creek;  and  it 
may  happen,  all  the  conditions  being  considered,  that  the  exhaus- 
tion of  an  entire  stream  by  large  bands  of  cattle  ought  not  to  be 

permitted The    distinction    between    natural  and  artificial 

'wants'  would  be,  under  supposable  conditions,  somewhat  fanciful." 
And  in  a  Nebraska  case8  "This  subject  has  been  confused  need- 
lessly by  the  unfortunate  use  of  the  words  'natural'  and  'ordinary' 
in  this  connection  to  distinguish  those  uses  which  the  common  law 
does  not  attempt  to  limit,  and  'artificial'  or  'extraordinary'  to 
designate  those  which  are  required  to  be  exercised  within  reason- 
able bounds.  .  .  The  law  does  not  regard  the  needs  and  de- 


s  sires  of  the  person  taking  the  water  solely  to  the  exclusion  of  all 

other  riparian  proprietors,  but  looks  rather  to  the  natural  effect 
of  his  use  of  the  water  upon  the  stream  and  the  equal  rights  of 
others  therein.  The  true  distinction  appears  to  lie  between  those 
modes  of  use  which  ordinarily  involve  the  taking  of  small  quanti- 
ties, and  but  little  interference  with  the  stream,  such  as  drinking  and 
other  household  purposes,  and  those  which  necessarily 'involve  the 
taking  or  diversion  of  iarge_quantities  and  a  considerable  interfer- 
ence with  its  ordinary  course  and  flow,  such  as  manufacturing  pur- 
poses. The  purpose  of  the  law  is  to  secure  equality  in  the  use 
of  the  water  by  riparian  owners,  as  near  as  may  be,  by  requiring 
each  to  exercise  his  rights  reasonably,  and  with  due  regard  to  the 
right  of  other  riparian  owners  to  apply  the  water  to  the  same 
or  to  other  purposes.  This  purpose  is  not  subserved  by  any  ar- 
bitrary classification."9 

6  Wiggins  v.   Muscupiabe   etc.   Co.,       Am.  St.  Rep.  697,  93  N.  W.  715,  60 
113  Cal.  182,  54  Am.  St.  Rep.  337,  45       L.  R.  A.  910. 

Pac.  160,  32  L.  R.  A.  667.  »  To  the   same  effect,  Crawford  v. 

7  69  Cal.  255,  10  Pac.  674.  Hathaway,  67  Neb.  325,  108  Am.  St. 

8  Meng  v.  Coffey,  67  Neb.  500,  108       Rep.  647,  93  N.  W.  781,  60  L.  R.  A. 


§  742  Ch.  32.     SEASONABLE  EIPARIAN  USE.         (3d  ed.)  801 

The  modern  tendency  is  thus  to  disregard  the  classification  into 
natural  and  artificial  uses,  and  to  view  all  uses  ("natural"  uses 
included)  not  alone  from  the  reasonableness  of  the  purpose  of  the 
taker,  but  also,  in  all  cases,  from  the  reasonableness  of  the  degree 
of  damage  from  the  taking  or  use,  upon  the  complaining  pro- 
prietors,  as  considered  in  the  following  sections.10 

(3d  ed.) 

§  742.  Irrigation  not  Within  This  Class. — There  was  at  one 
time  in  the  West  an  attempt  to  bring  irrigation  in  the  arid  regions 
within  the  classification  of  "natural  uses."  But  this  was  a  mis- 
understanding of  the  application  of  that  term,  which  was  intended 
to  classify  the  uses  immediately  necessary  to  sustain  life.  One 
case  says:  "At  an  early  day  there  was  a  tendency  to  class  irriga- 
tion among  those  uses  of  a  stream  which  might  be  carried  even  to 
entire  consumption  of  its  waters.  But  another  view  has  long  pre- 
vailed, and  is  now  well  established,  not  only  in  the  eastern  por- 
tion of  the  country,  but  even  •  in  the  arid  and  semi-arid  States 
(so  far  as  such  States  recognize  the'  common-law  doctrine  as  to 
riparian  rights),  to  the  effect  that  irrigation  is  one  of  those  uses 
which  must  be  exercised  reasonably  with  due  regard  to  the  rights 
of  others. ' '  u  And  another :  ' '  We  do  not  think  that  irrigation,  at 
least  when  conducted  in  the  manner  that  this  was,  can  constitute 
a  use  which  will  justify  an  upper  riparian  owner  in  taking  all 
of  the  water,  to  the  destruction  of  the  ordinary  domestic  uses 
thereof  by  a  riparian  owner  below,  in  the  absence  of  prior  legal 
appropriation."12  [By  "prior  legal  appropriation"  is  meant  one 

889.     See,  also,  Rogers  v.  Overacker,  citing  Nesalhous  v.  Walker,  45  Wash. 

4  Cal.  App.  333,  87  Pac.  1107;  Jones  621,   88   Pae.   1032;    Smith  v.  Corbit, 

v.  Conn,  39  Or.  30,  87  Am.  St.  Rep.  116  Cal.   587,  48  Pac.  725;    Shotwell 

634,   64   Pac.   855,   65   Pac.   1068,   54  v.  Dodge,  8  Wash.  337,  36  Pac.  254; 

L.  R.  A.  630.  Benton  v.  Johncox,  17  Wash.  277,  61 

10  But    a    preference    to    domestic  Am.   St.  Rep.    912,   49   Pac.   495,   39 
uses   is   sometimes   introduced   in   the  L.  R.  A.  107;  Union  Mill  Co.  v.  Fer- 
law  of  appropriation  by  statute.     See  ris,   2   Saw.    (U.    S.)    176,   Fed.   Cas. 
supra,  sec.  308.  No.    14,371,   8    Morr.    Min.   Rep.    90; 

11  Meng    v.    Coffey,    67    Neb.    500,  Howe  v.  Norman,  13  R.  I.  488;  Bros- 
108  Am.  St.  Rep.  697,  93  N.  W.  715,  nan   v.    Harris,   39  Or.    148,   87    Am. 
60  L.  R.  A.  910  (citing  Low  v.  Schaf-  St.  Rep.   649,  65  Pac.  867,  54  L.  R. 
fer,  24  Or.  239,  33  Pac.  678;  Gillett  A.   628;   Ellis  v.   Tone,  58   Cal.   289; 
v.    Johnson,    30    Conn.    180;    Black's  Harris   v.   Harrison,   93   Cal.   676,   29 
Pomeroy  on  Water  Rights,  sec.   151;  Pac.    325;    Lord   v.   Meadville   Water 
Gould    on    Waters,    sees.    205,    217).  Co.,    135    Pa.  '122,   20    Am.    St.   Rep. 
See,  also,  Lone   Tree  Co.   v.  Cyclone  864,  19  Atl.   1007,  8  L.  R.   A.   202; 
Co.   (S.  D.),  128  N.  W.  596.  Pomeroy  on  Water  Rights,  sec.   134; 

12  Nielson  v.  Sponer,  46  Wash.  14,  Gould  on  Waters,  BCCS.  205,  536. 
123  Am.  St.  Rep.  910,  89  Pac.  155, 

Water  Bights — 51 


802  (3d  ed.)    Pt.  IV.    THE  COMMON  LAW  OF  RIPAEIAN  RIGHTS.    §  742 

on  public  land  before  the  riparian  land  was  settled  upon  by 
others.]  13  In  a  well-known  case,14  the  respondents  claimed  that  in 
a  hot  and  arid  climate,  the  use  of  water  for  irrigation  was  a  natural 
want ;  that  the  upper  proprietors  on  the  stream  might  consume  all 
the  water  for  the  purpose  of  irrigating  their  land,  and  that  such 
use  would  be  reasonable.  The  court,  in  considering  this  question, 
said:  "To  lay  down  the  arbitrary  rule  contended  for  by  the  de- 
fendant, and  say  that  one  proprietor  on  the  stream  has  so  unlimited 
a  right  to  the  use  of  the  water  for  irrigation,  seems  to  us  an  un- 
necessary destruction  of  the  rights  of  other  proprietors  on  the 
stream  who  have  an  equal  need  and  an  equal  right. ' ' 

While,  as  the  authorities  below  considered  further  show,  it  is  the 
accepted  rule  in  the  West  that  irrigation  is  not  within  the  "natural 
uses"  in  the  sense  that  one  owner  may  for  that  purpose  wholly  de- 
prive other  owners  of  their  water  supply,  yet  the  law  of  Texas 
forms  an  exception  and  has  alone,  of  all  the  Western  States,  been 
built  (in  part)  upon  this  ground.15  Accordingly,  it  is  the  rule 
in  Texas  that  under  the  law  of  riparian  rights,  in  the  arid  dis- 
tricts of  this  State,  the  waters  of  all  natural  streams  may  be  ap- 
propriated by  an  upper  riparian  owner  for  irrigation  of  land,  to 
the  exclusion  of  the  use  thereof  by  a  lower  riparian  owner.16  Pos- 
sibly it  was  this  idea  which  induced  the  Nebraska  legislature  to  de- 
clare water  for  irrigation  a  ' '  natural  want, ' ' 17  though  the  rule 
is  well  settled  now  in  Nebraska  that  no  riparian  proprietor  is  en- 
titled to  more  than  a  reasonable  share  of  the  water  against  other 
riparian  owners  for  irrigation,  if  the  case  is  one  arising  under  the 
common  law.18 

13  See   supra,  sec.   257,   subsequent  330,  8  Morr.  Min.  Rep.  83.     And  an 
settler.  English  case  suggested  (now  also  dis- 

14  Mining  Co.  v.  Ferris,  2  Saw.  176,  credited)    that  in  manufacturing  dis- 
195,   Fed.   Cas.   No.    14,371,   8    Morr.  tricts,  entire  consumption  for  manufac- 
Min.  Rep.  90.  turing  may  come  within  the  primary 

15  Acting   upon    the    suggestion    in  uses    for    which    one    riparian    owner 
an    Illinois    case     (Evans    v.    Merri-  might  deprive  other  manufacturers  or 
weather   (111.),  3   Seam.  492,  38  Am.  riparian     owners     of     their     supply. 
Dec.    106)    that   in   arid   regions   irri-  (Brett,  M.  R.,  in  Ormerod  v.  Todmor- 
gation  by  any  one  proprietor  should  den  Mill  Co.  (1883),  11  Q.  B.  D.  168. 
be  regarded  as  a  natural  use  permit-  dictum.) 

ting  entire  exhaustion  of  the  stream  i6  Supra,  sec.  117;  Barrett  v.  Met- 

by  any  one  proprietor  against  all  the  calf,    12    Tex.    Civ.    App.    247,   33    S. 

others.     There   were   also    some   early  W.    758 ;    Rhodes    v.    Whitehead,    27 

New  England  cases  (now  discredited)  Tex.  310,  84  Am.  Dec.  631;   Tolle  v. 

to  the  same  effect.     Weston  v.  Allen  Correth,    31    Tex.    365,    18    Am.    Dec. 

(1811),  8  Mass.  136;  Daniels  et  al.  v.  540.     But  see  Stacy  v.   Uelery   (Tex. 

Daniels  et  al.,  7  Mass.  136.     Likewise  Civ.  App.  1909),  122  S.  W.  300. 

Perkins  v.  Dow  (Conn.  1739),  1  Root,  "  Neb.  Comp.   Stats.  6473. 

535.    But  see  Arnold  v.  Foot,  12  Wend.  •  18  Infra,  sec.  748. 


§  743  Ch.  32.     REASONABLE  RIPARIAN  USE.         (3d  ed.)   803 

But,  as  already  said,  Texas  stands  alone  in  this.  All  other  States 
that  give  anyone  a  larger  share  of  a  stream  for  irrigation  than 
would  be  reasonable  in  comparison  with  the  susceptibility  of  use 
by  the  land  of  other  riparian  proprietors  entitled  to  an  equal  use, 
do  so  by  avowedly  departing  from  the  common  law,19  and  not  by 
pretending  to  act  under  it. 

(3d  ed.) 

§  743.  Artificial  Uses — (Business  Uses). — Artificial  uses  are 
all  those  that  do  not  minister  directly  to  the  necessities  of  life  upon 
the  land  such  as  uses  for  the  purpose  of  improvement,  trade  or 
profit.  These  include  fishing,  bathing,  boating,  floatage.20  diversion 
for  irrigation,  the  running  of  machinery  and  all  the  many  other 
varied  purposes  for  which  water  can  be  used.  The  early  common- 
law  cases  dealt,  aside  from  domestic  use  or  "natural  uses,"  chiefly 
with  use  for  mill  or  power  purposes,21  and  this  is  just  as  permissible 
to-day  in  the  West.22 

For  these  business  uses  the  riparian  owner  can  never  jtake  all 
to  the  exclusion  of  other  riparian  owners.23  He  can  take  only  what 
is  reasonable  with  due  regard  to  the  uses  of  others  on  the  same 
stream.24  While  the  law  permitted  damage  from  "natural  uses," 

19  Supra,  sec.  118.  534,  4  Pac.   191;    Gould  v.  Stafford, 

20  See     Pealer    v.    Gray's     etc.    Co.  7  Cal.  66,  18  Pac.  879;   Alta  e.tc.  Co. 
(1909),  54  Wash.  415,  103  Pac.  451.  v.  Hancock,  85  Cal.  219,  20  Am.  St. 
See,  also,  16  Am,  &  Eng.  Ann.  Gas.  Rep.    217,    24    Pac.    645;    Harris    v. 
235,  note.  Harrison,   93  .  Cal.   676,   29   Pac.   325. 

21  E.    g.,    Tyler    v.    Wilkinson,    4  24  Ibid.;    and   Lux   v.    Haggin,    69 
Mason,   397,   Fed.     Cas.    No.    14,312;  Cal.   255,   at  394,   397,   10   Pac.   674; 
Prentice  v.  Geiger,  74  N.  Y.  341.  Ferrea  v.  Knipe,  28  Cal.  344,  87  Am. 

22  "The 'objection  that  the  petition  Dec.    128;    Hale    v.    McLea,    53    Cal. 
does  not  sufficiently  allege  a  reason-  578;    Stanford   v.   Felt,   71   Cal.   249, 
able   use  by   plaintiff   can   be   upheld  16  Pac.   900;   Heilbron  v.   Land   and 
only  on  the  theory  that  no  other  use  Water   Co.,   80   Cal.   189,   22   Pac.   62 
is  reasonable  that  interferes  with  ir-  (must    be    reasonable).     See    Stenger 
rigation.     The   right   and   reasonable-  v.  Tharp,  17  8.  D.  13,  94  N.  W.  402; 
ness  of  use  of  water-power  to  propel  Morris    v.    Bean    (Mont.),    146    Fed. 
a   flouring-mill   by   a   riparian   owner  431;  Union  Min.  Co.  v.  Ferris,  2  Saw. 
needs    no    justification.     It    has    been  176,    Fed.   Cas.    No.    14,371,   8    Morr. 
practiced    and    protected    ever    since  Min.  Rep.   90;    Same  v.  Dangberg,   2 
English  law  began."     Cline  v.  Stock,  Saw.    450,    Fed.    Cas.    No.    14,370,    8 
71  Neb.  70,  98  N.  W.  456,  102  N.  W.  Morr.  Min.  Rep.  113;   Swift  v.  Good- 
265.     See   Stanford   v.   Felt,    71    Cal.  rich,  70  Cal.  103,  11  Pac.  561;  Gould 
249,   250,   16   Pac.   900,   dictum;   Ka-  v.  Stafford,  77  Cal.  66,  18  Pac.  879; 
lams,    Co.   v.    Kalama   Co.,   48    Wash.  Durga  v.  Lincoln  etc.   Co.,  47   Wash. 
612    125   Am.   St.  Rep.   948,  94  Pac.  477,   92   Pac.    343;    Turner   v.   James 
469'  22  L.  R.  A.,  N.  S.,  641 ;  Meatone  Canal  Co.,   155   Cal.   82,   132   Am.  St. 
Co   v.  Redlands  Co.,  155  Cal.  323,  100  Rep.   59,   99   Pac.   520,   22   L.   R.   A., 
Pac.   1082,   22  L.  R.   A.,  N.   S.,   382,  N.  S.,  401,  17  Ann.  Cas.  823 ;  Hudson 
17   Ann.   Cas.   1222.     See  infra,  sees.  v.  Pailey,  156  Cal.  617,  105  Pac.  748; 
746,  747,  1081.  Stacey   v.    Delery    (Tex.    Civ.    App.), 

23  Learned    v.    Tangeman,    65    Cal.  122  S.  W.  300. 


804  (3d  ed.)    Pt.  IV.    THE  COMMON  LAW  OF  RIPAEIAN  EIGHTS.    §  743 

regardless  of  degree  of  damage,  for  other  uses  it  is  damnum  absque 
injuria  only  to  a  certain  extent — a  question  of  decree  in  each  case. 
What  is  a  reasonable  use  is  a  question  of  fact  to  be  decided  in  each 
case.25  No  one  thing  will  determine  how  much  water  a  riparian 
owner  is  entitled  to  take  as  against  other  riparian  owners;  it  de- 
pends upon  the  whole  evidence,  and  he  is  entitled  to  offer  in  evi- 
dence all  pertinent  facts  which  will  enable  the  jury  to  conclude 
whether  his  use  is  reasonable  or  not.  The  decision  must  be  made, 
"reference  being  had  to  the  use  required  by  the  others."1  The 
necessity  of  one  proprietor,  however  pressing,  is  not  the  sole 
i!ic-;isure,  though  he  took  no  more  than  necessary  for  his  use;  it 
must  be  in  comparison  with  the  necessities~ol  the  other  owners.2 

The  State  owning  riparian  land  cannot  as  riparian  proprietor 
take  water  for  thirteen  hundred  people  in  a  penitentiary  and  insane 
asylum  a  quarter  of  a  mile  from  the  stream,3  a  case  in  which  the 
test  of  " natural  uses"  must  give  way  on  the  facts  because  unrea- 
sonable. Likewise  the  watering  of  large  bands  of  cattle  will  not  be 
allowed  to  the  exclusion  of  other  proprietors  under  the  plea  that 
the  watering  of  cattle  is  a  ' '  natural  use. ' ' 4  An  irrigation  com- 
pany owning  riparian  land  has  not  thereby  any  greater  right  than 
other  riparian  owners.5 

To  point  the  rule,  reference  may  t)e  made  to  a  New  York  case 
where  it  is  said:  "He  may  also  construct  ornamental  ponds,  and 
store  them  with  fish,  or  use  them  for  his  geese,  his  ducks,  or  his 
swans,  so  long  as  the  size  of  the  ponds  is  not  so  large  as  to  ma- 
terially diminish,  by  evaporation  and  absorption,  the  quantity  of 

25  See,   also,   Stanford  v.  Felt,   71  277,   52   Am.  Eep.   763;   Ulbrieht  v. 

Cal.   249,    16   Pac.    900;    Heilbron   v.  Enfaula  W.  Co.,  86  Ala.  587,  11  Am. 

L.  &  W.  Co.,  80  Cal.  194,  22  Pac.  62;  St.  Eep.  72,  6  South.  78,  4  L.  E.  A. 

Meng  v.  Coffey,  67  Neb.  500,  108  Am.  572;    Boyd    v.    Schreiver    (Tex.    Civ. 

St.  Eep.  697,  93  N.  W.  715,  60  L.  E.  App.),  116  S.  W.  100. 

A.   910;    Turner  v.   James   Canal   Co.  i  LUX  v.   Haggin,   69   Cal.   255,   at 

(1909),   155    Cal.    82,    132    Am.    St.  311    19   pae.   674. 

Sepi  55'fti"^PaAC'  52n'  22«o^  TT'-A"  'Verdugo  W.  Co.  v.  Verdugo 
N.  S  401,  17  Ann  Cas.  823 ;  Union  *  Q3  pac  <* 

etc.  Co.  v.  Ferris,  2   Saw.   176,  Fed.  „     '\  n  .„    ~ 

Pna    TSTn     14371     8   Morr    Min    Ben  3  Salem    etc.    Co.    v.    Lord,    42    Or. 

S ?   Union  M.  Co!  v8Dtgber^ 81  S  82,  69  Pac.   1033,   70  Pac.  832;    Mc- 

73;      Stacey    v.    Delery      (Tex.    Civ.  Cartney  v.  Londonderry    Ey.     [1904] 

App.),  122  S.  W.  300;  Bed  Eiv.  Co.  APP-   Cas-  301- 

v.    Wright,    30    Minn.    249,    44    Am.  4  Lux  v.   Haggin,   69   Cal.   255,   at 

Eep.   194,   15   N.  W.   167;    Billing  v.  407,  10  Pac.   674.     See  79  Am.  Dec. 

Murray    (1855),  6  Ind.   327,   63   Am.  642,   note. 

Dec.    385;    Wadsworth     v.    Tillotson,  5  State  ex  rel.  Kettle  Falls  etc.  Co. 

15    Conn.    366,    39    Am.    Dec.    391;  v.  Superior  Court,  46  Wash.  500,  90 

Lockwood    Co.    v.   Lawrence,    77    Me.  Pac.  653. 


.§743  Ch.  32.     REASONABLE  RIPARIAN  USE.         (3d  ed.)  805 

water  usually  flowing  in  the  stream."6  In  the  arid  West  at  first 
sight  this  would  be  considered  opposed  to  all  ideas  of  reasonable- 
ness, and  it  is  doubtful  whether  a  court  would  uphold  it  against 
another  riparian  owner  with  whose  irrigation  it  interferes.  Yet  it 
shows  the  view  of  the  common  law  that  each  case  must  be  con- 
sidered upon  its  own  facts  and  its  own  surroundings.  Where  the 
stream  is  large  and  the  duck-pond  small,  and  the  complaining 
riparian  proprietor's  irrigation  not  impaired,  and  all  the  evidence  is 
of  the  same  tenor,  probably  every  common-law  court  West  or  East 
would  protect  the  pond  against  what  would  then  be  but  a  willful 
injury.  On  the  other  hand,  if  the  stream  must  be  hoarded  for 
irrigation  the  duck-pond  would  not  be  permitted  to  impair  the  use 
by  the  riparian  irrigators,  because,  viewing  the  situation  -as  a  whole, 
the  proof  would  show  it  to  be  unreasonable  under  the  entire  evi-  ' 
dence.  "We  feel  that  where  water  is  so  precious  it  should  not  be 
used  for  mere  matters  of  taste  and  fancy  [artificial  ponds  and  foun- 
tains] ,  while  those  who  need  it  for  useful  purposes  go  without. ' ' 7 
There  is  a  tendency  in  the  common-law  States  of  the  West  to 
ignore  all  uses  but  irrigation,  and  to  disregard  any  right  in  a 
riparian  proprietor  against  other  riparian  owners,  where  his  land 
is  incapable  of  being  irrigated.8  This  is  rather  a  rule  of  fact  than 
of  law,  however.  Upon  a  stream  urgently  required  for  irrigation, 
and  so  used  by  the  custom  of  the  community,  any  other  use  im- 
pairing irrigation  is  entitled  to  small  consideration  as  matter  of  fact 
in  determining  ^hat  is  reasonable.  Nevertheless,  as  a  matter  of 
law,  all  possible  uses  are  entitled  to  some  consideration  in  reaching 
a  conclusion,  and  the  fact  that  a  riparian  proprietor's  lands  are 
not  irrigable  is  not  conclusive  that  he  is  entitled  to  no  water,  since 
domestic  use  or  a  mill-power  may  be  possible,  or  some  other  of  the 
various  purposes  to  which  water  is  applicable.  As  a  question  of 
fact,  the  possibility  of  such  use  may  be,  and  usually  is,  under  the 
circumstances,  entitled  to  little  consideration  in  deciding  what  is 
reasonable,  and  the  tendency  undoubtedly  is  to  pass  it  by  where 
irrigation  is  in  question.  The  usages  and  wants  of  the  stream  com- 

6  Pierson  v.  Speyer,  178  N.  Y.  270,  the  beautiful,"  the  court  says  in  Lux 
102  Am.  St.  Rep.  499,  70  N.  E.  799.  v.  Haggin,  69  Cal.  255,  at  396,  10  Pac. 

7  Los  Angeles  v.  Pomeroy   (1899),  674.     See,   also,   infra,   sec.    822. 
124  Cal.  597,  at  650.     See,  also,  Ibid.,  8  E.  g.,  Southern  Cal.   Co.   v.  Wil- 
p.  640,  57  Pac.  585.     So  likewise  the  shire,  144  Cal.  68,  at  71,  77  Pac.  767, 
law,  "excludes,  where  water  is  reason-  quoted   infra;    Montecito    etc.    Co.    v. 
ably  used  above  for  irrigation,  mere  Santa  Barbara,  151  Cal.  377,  90  Pac. 
sentiment"    or   that   its   flow   "merely  935. 

pleases  the  eye  or  gratifies  a  taste  for 


806   (3d  ed.)    Pt.  IV.    THE  COMMON  LAW  OF  RIPARIAN  RIGHTS.    §  744 

munity  as  a  whole  form  an  important  circumstance  bearing  upon 
what  is  reasonable  in  each  case.9  Correspondingly,  where  all  but 
one  proprietor  on  the  stream  use  it  for  power,  the  exceptional 
proprietor  would  probably  receive  less  consideration  for  his  irriga- 
tion. 

(3d  ed.) 

§  744.  Same. — The  principle  is  that  the  reasonable  use  to 
which  each  proprietor  is  entitled  is  the  reasonable  use  of  his  land. 
As  was  said  by  Mr.  Justice  Temple  in  Katz  v.  Walkinshaw : 10 
"Proprietary  rights  are  limited  by  the  common  interests  of  others, — 
that  is,  to  a  reasonable  use, — and  such  use  one  may  make  of  his  land, 
though  it  kijures  others.  This  proposition  is  generally  recognized. 
....  All  rights  in  respect  to  water  are  peculiarly  within  its 
province."  In  the  reasonable  use  of  one's  own  land,  the  damage  to 
the  neighbor  is  damnum  absque  injuria.11 

We  would  state  the  following  propositions  with  regard  to  per- 
mitted uses  among  riparian  owners  between  themselves : 

A  riparian  proprietor  may,  for  the  support  of  life  ("natural 
uses")  on  his  riparian  land,  use  the  water  to  the  damage  of  another 
riparian  proprietor,  such  damage  being  damnum  absque  injuria, 
regardless  of  the  degree  of  damage. 

He  may  also,  for 'other  useful  purposes  ("artificial  uses")  on 
and  for  the  benefit  of  his  riparian  land,  use  the  water  to  the  dam- 
age of  another  riparian  proprietor,  but  only  to  a  reasonable  degree 
of  damage;  such  damage  being  damnum  absque  injuria  only  with 
regard  to  the  degree  of  damage  in  consideration  of  the  necessities 
and  equal  rights  of  both  to  enjoy  their  own  land;  any  damage  in 
excess  of  that  reasonable  degree  (to  be  determined  in  each  case) 
being  wrongful. 

9  Parker  v.  American  etc.  Co.,  195  trolling   circumstance   in   determining 

Mass.   591,   81    N.   E.   468,   10   L.   R.  what  is  reasonable  use  by  any  one  of 

A.,    N.    S.,    584;     Carey    v.     Daniels  them.     Lawrie    v.    Silsby    (1909),    82 

(Mass.    1844),    8    Met.    420,   41    Am.  Vt.  505,  74  Atl.   94. 

Dec.   532;    Red  River  Co.  v.  Wright,  10  141  Cal.  116,  at  144,  99  Am.  St. 

30   Minn.  249,   44  Am.   Rep.   194,   15  Rep.  35,  70  Pac.  663,  74  Pac.  766,  64 

N.  W.   167 ;   Snow  v.  Persons,  28  Vt.  L.  R.  A.  236. 

463,    67    Am.    Dee.    723;    Dilling    v.  H  "If    his    proper    and    reasonable 

Murray    (1855),   6   Ind.   328,   63  Am.  use    causes     damage     to    the     lower 

Dee.    385.     See     St.    Helen's     Co.    v.  owner,  such  damage  flowing  from  the 

Tipping    (1865),   11   H.  L.   Cas.   642,  proper    use    of     a    natural    right    is 

11     Eng.      Reprint,      1483      (smelter  damnum  absque  injuria."     McEvoy  v. 

fumes).     Uses    to    which    community  Taylor    (1909),   56    Wash.     357,    105 

applies  the  stream  (in  this  case  solely  Pac.  851. 
domestic   use)    form   an   almost   con- 


§  745  Ch.  32.     EEASONABLE  RIPARIAN  USE.         (3d  ed.)  807 

Where  his  use  is  to  no  possible  damage  of  another,  we  refer  to 
a  following  chapter.12 

« 

B,    REASONABLE  USE. 
(3d  ed.) 

§  745.  Reasonable  Use  Generally. — As  there  has  been  so  much 
misrepresentation  as  to  the  rights  of  riparian  proprietors  inter  se, 
we  here  quote  at  large  from  decisions  throughout  the  English  and 
Eastern  jurisdictions  showing  that  the  test  of  reasonableness  every- 
where is  the  governing  principle  among  riparian  proprietors  be- 
tween themselves ;  and  that  what  is  reasonable  is  a  question  of  fact, 
depending  upon  all  the  evidence  which  may  be  adduced,  showing 
the  characteristic  circumstances  and  conditions  surrounding  the 
parties  and  their  lands  and  the  stream;  the  final  decision  resting 
upon  the  best  judgment  of  the  jury  (or  the  court  sitting  without 
one) ,  passing  upon  each  controversy  as  it  arises. 

In  a  recent  California  case  it  is  said:  "The  defendant  was  en- 
titled only  to  a  reasonable  use  of  the  waters  of  all  parts  of  the 
stream  including  the  spring;  the  part  of  the  judgment  complained 
of  gives  him  more  than  this  and  is  wrong. "  13  In  a  late  Washing- 
ton case:  "The  parties  being  riparian  owners,  their  respective 
rights  to  the  use  of  the  water  are  to  be  determined  by  their  rights 
as  such  riparian  owners.  These  rights  are  now  well  established. 
Each  riparian  owner  is  entitled  to  a  reasonable  use  of  the  waters 
as  an  incident  to  his  ownership,  and,  as  all  owners  upon  the  same 
stream  have  the  same  right  of  reasonable  use,  the  use  of  each  must 
be  consistent  with  the  rights  of  others,  and  the  right  of  each  is 
qualified  by  the  rights  of  others. ' '  u 

The  law  of  England  has  been  very  recently  summed  up  as  follows 
(referring  to  irrigation  inter  alia)  :  "If  a  lower  proprietor  has  a 
right  to  the  free  flow  of  the  water  without  diminution  or  alteration, 
a  right  to  consume  the  water  before  it  reaches  him  is  apparently 
irreconcilable  with  it;  but  such  inconsistencies  are  to  be  met  with 
in  all  natural  rights,  and  the  law  reconciles  them  by  holding  that 

12  Infra,  sees.  795  et  seq.,  819  et  American  law  it  is,  on  the  one  hand, 

seq.  to   permit   a   reasonable   use   of   land 

That   reasonable   use   of   one's   own  by  all,  and,  on  the  other,  to  prohibit 

land  will  excuse  damage  to  a  neigh-  an  excessive  use  by  any. 

bor  is  also  the  American  law  of  per-  13  Gutierrez  v.  Wege,  145  Cal.  734, 

colating    water;    is    becoming    so    re-  79  Pac.   449. 

garding   surface   water;    and    is   gen-  i4  McEvoy    v.    Taylor    (1909),    56 

erally  also  the  law  of  extrahazardous  Wash.   357,    105   Pac.    851.     Affirmed 

uses,   contra  to    Rylands   v.    Fletcher.  in  City  of  Aberdeen  v.  Lytle  etc.  Co. 

The  spirit  of  the  English  law  is  now  (Wash.),  108  Pac.  945. 
to    leave    the   parties    alone;    of    the 


808  (3d  ed.)    Pt.  IV.    THE  COMMON  LAW  OF  EIPARIAN  EIGHTS.    §  745 

each  is  only  to  be  enjoyed  reasonably,  that  they  are  not  absolute 
rights  without  limit,  but  that  they  are  rights  modified  by  all  the 
rights  of  others. ' ' 15  Chancellor  Kent  said :  ' '  Though  he  may  use 
the  water  while  it  runs  over  his  land  as  an  incident  to  the  land,  he 
cannot  unreasonably  detain  it  or  give  it  another  direction,  and  he 
must  return  it  to  its  ordinary  channel  where  it  leaves  his  estate."  16 
Chief  Justice  Shaw,  in  Massachusetts,  said:  "The  right  to  flowing 
water  is  now  well  settled  to  be  a  right  incident  to  property  in  land ; 
it  is  a  right  publici  juris,  of  such  character  that,  whilst  it  is  common 
and  equal  to  all  through  whose  land  it  runs,  and  no  one  can  obstruct 
or  divert  it,  yet,  as  one  of  the  beneficial  gifts  of  Providence,  each 
proprietor  has  a  right  to  a  just  and  reasonable  use  of  it  as  it  passes 
through  his  land ;  and  so  long  as  it  is  not  wholly  obstructed  or  di- 
verted, or  no  larger  appropriation  of  the  water  running  through  it 
is  made  than  a  just  and  reasonable  use,  it  cannot  be  said  to  be 
wrongful  or  injurious  to  a  proprietor  lower  down. .  What  is  such 
a  just  and  reasonable  use  may  often  be  a  difficult  question  depending 
on  various  circumstances. ' ' 17  And  a  recent  case  in  the  same  court 
declares:  "This  is  a  common  right,  and  each  must  exercise  it  with 
due  regard  to  the  rights  of  others,  and  each  must  submit  to  that 
degree  of  inconvenience  and  hardship  in  the  exercise  of  his  rights 
which  results  from  the  existence  of  like  rights  in  others.  In  such 
cases  each  proprietor  is  entitled  to  use  the  stream  in  such  reasonable 
manner,  according  to  the  usages  and  wants  of  the  community,  as 
will  not  be  inconsistent  with  a  like  use  by  other  proprietors  above 
or  below  him."  18  In  Maine  it  was  said:  "The  right  of  property  is 
in  the  right  to  use  the  flow,  and  not  in  the  specific  water,"  and 
"reasonable  use  is  the  touchstone  for  determining  the  rights  of  the 
respective  parties."19  In  a  Pennsylvania  case:  "Each  proprietor 
may  make  any  reasonable  use  of  the  water  upon  his  premises;  he 
may  diminish  the  quantity,  but  the  use  must  be  a  reasonable  one. ' ' 20 

15  14  Ency.  of  Laws  of  Eng.,  606,  17  Elliott     v.    Fitchburg     By.,    10 

607,   article   "Watercourse,"  by  J.  L.  Gush.   193,   57   Am.   Dec.   85.     Italics 

Goddard,  author  of  Goddard  on  Ease-  ours, 

ments.  18  parker  v.  American  etc.  Co.,  195 

18  3  Kent's  Commentaries,  sec.  439.  Mass.  591,  81  N.  E.  468,  10  L.  R.  A., 

This  is  so  similar  to  the  Code  Napo-  N    g     534. 

leon    (quoted  supra,   sec.   685)    as   to  '19  'L        '          Clifford    54  Me    487 

indicate  that  it  might  have  been  cop-  Q9   A             7  I'R1              '             6-         ' 

•    -i    ,                                •  n      •        •         f*  «  Am.  Dec.  561. 
led   therefrom,   especially   in  view   of 

the  fact  that  Chancellor  Kent's  famil-  20  Charge    of    trial    court    affirmed, 

iarity  with  the  civil  law  has  been  said  Brown    v.    Kistler,    190    Pa.    499,    42 

by   himself   to   be    one    of    the    chief  Atl.  885. 

reasons  for  the  authoritative  position  See,  likewise,  Wadsworth  v.  Tillot- 

of  Ms  commentaries.  son,  15  Conn.  366,  39  Am.  Dec.  391. 


§  746  Ch.  32.     REASONABLE  RIPARIAN  USE.         (3d  ed.)  809 

These  are  general  expressions,  and  are  given  to  show  that  "rea- 
sonable use  is  the  touchstone  for  determining  the  rights"  of  ripa- 
rian owners  among  themselves,  not  only  in  California  but  throughout 
the  common  law,  and  that  the  statements  sometimes  made  that  the 
enforcement  of  this  rule  in  California  was  a  departure  from  the 
common  law  are  unwarranted  and  a  misrepresentation  of  the  com- 
mon law.20* 

(3d  e<3.) 

§  746.  Reasonable  Use  for  Power  Purposes. — As  the  question 
of  reasonable  use  is  one  of  fact  in  each  case  depending  upon  the  cir- 
cumstances, what  is  reasonable  upon  a  mill  stream  will  be  different 
as  a  fact  from  what  is  reasonable  upon  an  irrigation  stream. 

The  circumstances  chiefly  to  be  considered  where  use  for  power 
preponderates  among  the  riparian  owners  are  found  chiefly  in  the 
Eastern  cases,  where  mill  use  is  the  dominating  use.  Thus,  in  an 
early  Massachusetts  case  the  learned  judge  already  quoted  said  in 
another  case,21  applying  this  to  mill  use:  "It  is,  therefore,  held 
that  each  proprietor  is  entitled  to  such  use  of  the  stream  so  far  as 
it  is  reasonable,  conformable  to  the  usages  and  wants  of  the  comr 
munity,  and  having  regard  to  the  progress  of  improvement  in 
hydraulic  works,  and  not  inconsistent  with  a  like  reasonable  use 
by  the  other  proprietors  of  land  on  the  same  stream  above  .and 
below. "  22  And  still  again  in  another  case  the  same  eminent  author- 
ity laid  down  the  law  for  power  use  as  follows:  "What  is  a  rea- 
sonable use  must  depend  on  circumstances,  such  as  the  width  and 
depth  of  the  bed,  the  volume  of  water,  the  fall,  previous  usage,  and 
the  state  of  improvement  in  manufactures  and  the  useful  arts." 
[Defendant  detained  the  entire  flow  long  enough  to  fill  a  mill  pond, 
causing  a  shut-down  of  plaintiff's  mill  for  two  days  in  June  and 
four  days  in  July.]  "The  court  are  of  opinion  that  this  was  not 
an  unreasonable  use  of  the  watercourse  by  the  defendants,  and  that 
any  loss  which  the  plaintiff  temporarily  sustained  by  it,  was 
damnum  absque  injuria."  ^  In  Wisconsin :  "What  constitutes  rea- 

20a  Supra,  sec.  673.  ^  Shaw,   C.   J.,   in    Pitts   v.   Lan- 

21  Chief  Justice  Shaw  in  Carey  v.  caster  Mills,  54  Mass.  (13  Met.)  156. 
Daniels    (1844),  8  Met.  470,  »~*™T~~' Eiparian   owner   may   dam   stream   to 
Dec.  532.     Italics  ours. 

22  Subject     to    a    modification     in  a  reasonable  extent  for  water-power, 
favor  of  prior  occupancy   of  millsite  Corse    v.    Dexter    (1909),    202    Mass, 
backing     water     under     the     special  3^  88  N.  E.  332. 
Massachusetts  Mill  Acts. 


810  (3d  ed.)    Pt.  IV.    THE  COMMON  LAW  OF  RIPARIAN  RIGHTS.    §  747 

sonable  use,"  says  the  court  in  a  power  case,  "depends  upon  the 
circumstances  of  each  particular  case ;  and  that  no  positive  rule  of 
law  can  be  laid  down  to  define  and  regulate  such  use  with  entire 
precision,  is  the  language  of  all  the  authorities  upon  the  subject. 
In  determining  this  question,  regard  must  be  had  to  the  subject 
matter  of  the  use,  the  occasion  and  manner  of  its  application,  its 
object,  extent  and  the  necessity  for  it,  to  the  previous  usage,  and 
to  the  nature  and  condition  of  the  improvements  upon  the  stream; 
and  so,  also,  the  size  of  the  stream,  the  fall  of  water,  its  volume, 
velocity,  and  prospective  rise  and  fall,  are  important  elements  to 
be  considered. " 24  In  Minnesota  the  court  declares  i25  "In  de- 
termining what  is  a  reasonable  use,  regard  must  be  had  to  the  sub- 
ject matter  of  the  use,  the  occasion  and  manner  of  its  application ; 
the  object,  extent,  necessity  and  duration  of  the  use;  the  nature 
and  size  of  the  stream;  the  kind  of  business  to  which  it  is  sub- 
servient; the  importance  and  necessity  of  the  use  claimed  by  one 
party,  and  extent  of  the  injury  to  the  other  party ;  the  state  of  im- 
provement of  the  country  in  regard  to  mills  and  machinery,  and 
the  use  of  water  as  a  propelling  power,  the  general  and  established 
usages  of  the  country  in  similar  cases;  and  all  the  other  and  ever 
varying  circumstances  of  each  particular  case,  bearing  upon  the 
question  of  the  fitness  and  propriety  of  the  use  of  the  water  under 
consideration.26  Evidence  of  the  uniform  and  general  custom  in  like 
cases  is  competent,  although  of  course  not  conclusive,  upon  the 
question  whether  a  use  is  a  reasonable  one." 

These  cases  are  quoted  to  show  that  the  basic  common-law  test  is 
what  is  reasonable  between  the  contesting  riparian  proprietors ;  that 
what  is  reasonable  on  a  mill  stream  may  not  be  so  on  an  irrigation 
stream  and  vice  versa;  that  the  custom  of  the  community,  that  is, 
whether  the  dominant  use  of  the  stream  by  the  majority  of  the  ripa- 
rian proprietors  is  for  power  or  for  irrigation  or  for  some  other 
use,  must  considerably  affect  the  decision  of  what  any  one  of  them 
may  do;  but  that  only  the  facts  vary,  the  ultimate  test  (reasonable 
use)  remaining  in  all  cases  unchanged. 

(3d  ed.) 

§  747.  Same — In  California. — A  recent  California  case  for  the 
first  time  deals  at  some  length  with  power  uses  by  a  riparian  owner 

24  Timm  v.  Bear,  29  Wis.  254.  Minn.  249,  44  Am.  Rep.   194,  15  N. 

25  Red     River    Co.    T.    Wright,    30       WAfl1S. 

28  Citing  cases. 


§  747  Ch.  32.     REASONABLE  EIPARIAN  USE.         (3d  ed.)  811 

as  such.  Many  mining  cases  have,  in  California,  dealt  with  power 
use  under  the  law  of  appropriation  on  public  land  in  the  pioneer 
days,  but  this  is  the  first  considering  it  specifically  with  reference 
to  riparian  owners  as  such,  and  among  themselves,  now  that  much  of 
the  land  of  the  State  has  become  private  and  the  law  of  riparian 
rights  has  so  largely  displaced  the  law  of  appropriation.1  The  court 
said,  per  Mr.  Justice  Shaw :  2 

"The  power  company  owns  the  land  on  which  the  power-house 
stands,  and  all  the  intervening  land  between  the  power-house  and 
the  dam  at  the  head  of  its  pipe-line,  and  all  this  land  is  riparian 
to  Mill  Creek.  The  electricity  generated  at  the  power-house  by  the 
use  of  the  water  from  the  pipe  is  carried  away  to  Redlands  and 
other  places  not  on  the  stream,  and  there  used  for  light,  heat  and 
power.  The  plaintiff  makes  the  novel  proposition  that  the  use  of 
the  water  to  generate  electric  power  by  means  of  a  power-house 
situated  on  riparian  land  is  not  a  use  within  the  scope  of  the  ripa- 
rian rights  which  attach  to  the  land,  unless  the  electric  power  is 
not  only  generated  upon  that  land,  but  is  also  applied  and  used 

-within  its  confines.     There  is  no  merit  in  this  proposition 

The  use  of  the  water  in  its  passage  through  his  land  to  operate  a 
power  plant  thereon  is  as  clearly  within  his  rights  as  is  his  right  to 
operate  a  mill  thereon  with  which  to  grind  grain  or  to  operate  any 
other  machinery,  than  which  there  is  no  more  ancient  or  well-estab- 
lished feature  of  riparian  rights.  The  theory  of  the  plaintiff  on 
this  point  would  seem  to  come  to  this,  that  in  the  process  the  water 
is  in  some  way  transformed  into  electricity  and,  in  that  form,  is 
carried  away  and  used  on  nonriparian  land.  If  this  were  correct, 
perhaps  the  use  would  not  be  included  in  the  riparian  right  and 
perhaps  even  a  prior  appropriator  below  could  prevent  such  use  if 
it  worked  injury  to  his  right.  But  no  such  thing  occurs.  The 
water  is  not  changed  into  electricity,  nor  carried  away  by  the 
process.  It  is  not  the  water  that  becomes  electricity.  It  is  the 
force  of  gravity,  the  weight  of  the  water,  which  turns  the  wheels, 
and,  being  converted  into  electric  power,  is  carried  away  on  the 
wires,  the  water  itself  being  turned  back  into  the  stream,  precisely 
as  in  the  case  of  its  use  to  turn  an  ordinary  mill  wheel.  The  power 
company,  being  the  owner  of  the  riparian  land,  has  the  full  right 
to  use  the  water  in  its  natural  course  on  its  land  for  that  purpose. 

1  Supra,  sees.  116,  231;  infra,  sec.       (1909),  155  Cal.  323,  100  Pae.  1082, 
815.  -'2  L.  R.  A.,  N.  S.,  382,  17  Ann.  Cas, 

2  Mentone     Co.     v.     Redlands     Co.       1222. 


812  (3d  ed.)    Pt.  IV.    THE  COMMON  LAW  OF  KIPARIAN  BIGHTS.    §  748 

It  has  also  the  right,  if  it  is  more  convenient  and  effective  so  to  do, 
to  turn  it  out  of  its  natural  channel  at  the  upper  end  of  its  posses- 
sions, use  it  for  generating  power  thereon  and  turn  it  back  into  the 
stream  within  its  lands  below,  provided  such  interference  with 
natural  conditions  does  not  unduly  injure  others  who  have  rights 
in  the  water." 

(3d  ed.) 

§  748.    Reasonable  Use  for  Irrigation.— For  all  but  "natural 

uses"  the  riparian  proprietor  is  limited  in  his  use  so  as  not  to  un-. 
reasonably  interfere  with  the  use  of  their  lands  by  other  riparian 
owners.  The  same  is  true  of  irrigation  just  as  of  other  uses  for 
profit.3  One  riparian  proprietor  cannot  take  water  for  irrigation  to 
the  unreasonable  exclusion  of  the  others  below,  or  take  all.4  Con- 
cerning the  reasonable  use  allowed  the  riparian  proprietor  for  irri- 
gation extracts  are  here  given  from  some  decisions,  English  and 
Eastern  as  well  as  Western.  They  all  agree;  namely,  that  the  use 
for  irrigation  is  proper  within  the  limit  that  it  must  not  unreason- 
ably prevent  the  possibility  of  equal  use  by  the  other  riparian 
proprietors. 

In  a  California  case  Mr.  Justice  Shaw  said:  "Where  two  persons 
own  land  along  the  line  of  a  watercourse,  the  measure  of  their  rights 
is  not  necessarily  controlled  solely  by  the  length  of  their  respec- 
tive frontages  on  the  stream.  Many  other  things  may  enter  into 
the  question.  One  may  have  a  tract  of  land  of  such  character  that 
but  little  use  could  be  made  of  the  water  upon  it,  while  the  land 
of  the  other  may  all  be  so  situated  that  it  could  be  irrigated  with 
profit  and  advantage.  In  Harris  v.  Harrison,5  it  is  said :  '  In  such 
a  case,  the  length  of  the  stream,  the  volume  of  water  in  it,  the 
extent  of  each  ownership  along  the  banks,  the  character  of  the  soil 
owned  by  each  contestant,  the  area  sought  to  be  irrigated  by  each — 
all  these,  and  many  other  considerations,  must  enter  into  the  solu- 
tion of  the  problem.'  And  the  general  rule  is  there  stated  to  be, 
in  cases  where  there  is  not  water  enough  to  supply  the  wants  of 
both,  that  each 'owner  has  the  right  to  the  reasonable  use  of  the 
water,  taking  into  consideration  the  rights  and  necessities  of  the 
other. "  6  In  Nevada  Judge  Hawley  said :  ' '  Under  the  rules  of  the 

3  Lone    Tree    etc.    Co.    v.    Cyclone  4  Learned    v.    Tangerman,    65    Gal. 

etc.  Co.,  15  S.  D.  519,  91  N.  W.  352;  334>  4  Pac-  191>  and  cases  supra. 

Tone  ,   Corrith,    Si    Te,    362,  and  |  &£*&*£*£•..    wil. 

cases  supra,  98  Am.  Dec.  540.  snire,  144  Cal.  68,  at  71,  77  Pae.  767. 


§  748  Ch.  32.     REASONABLE  RIPARIAN  USE.         (3d  ed.)  813 

common  law,  the  riparian  proprietors  would  all  have  the  right  to 
a  reasonable  use  of  the  waters  of  a  stream  running  through  their 
respective  lands  for  the  purpose  of  irrigation.  It  is  declared  in  all 
the  authorities  upon  this  subject  that  it  is  impossible  to  lay  down 
any  precise  rule  which  will  be  applicable  to  all  cases.  The  ques- 
tion may  be  determined  in  each  case  with  reference  to  the  size  of 
the  stream,  the  velocity  of  the  water,  the  character  of  the  soil,  the 
number  of  proprietors,  the  amount  of  water  needed  to  irrigate  the 
lands  per  acre,  and  a  variety  of  other  circumstances  and  conditions 
surrounding  each  particular  case;  the  true  test  in  all  cases  being, 
whether  the  use  is  of  such  a  character*  as  to  materially  affect  the 
equally  beneficial  use  of  the  waters  of  the  stream  by  the  other  pro- 
prietors. " 7  In  a  Nebraska  case : 8  "  The  common  law  seeks  to 
secure  equality  in  use  of  the  water  among  all  those  who  are  so 
situated  that  they  may  use  it.  It  does  not  give  to  any  riparian 
owner  property  in  the  corpus  of  the  water,  either  so  as  to  be  able 
to  take  all  of  it,  or  so  as  to  insist  that  every  drop  of  it  flow  in  its 
natural  channel.9  When,  therefore,  counsel  tell  us  that  their  clients 
have  a  natural  right  to  irrigate,  and  that  reasonable  use  of  the  water 
is  necessary  in  exercise  of  that  right,  they  urge  nothing  against  the 
rules  of  the  common  law,  since  the  latter  merely  insist  that  others 
along  the  streams  in  question  have  the  same  natural  right,  and  per- 
mit every  reasonable  use  by  each,  consistent  with  like  use  by  all." 
And  elsewhere  in  the  same  case:  "For,  if  we  regard  the  question 
of  what  is  reasonable  use  as  in  great  part  one  of  fact,  the  conditions 
of  soil,  climate  and  rainfall  in  any  given  locality,  when  proved,  may 
be  considered  properly  as  important  elements  of  fact,  without  in 
the  least  affecting  the  general  rule.  But  if  we  concede  so  much, 
the  law  iijsists  that  the  lower  owner  shall  not  be  deprived  of  the 
use  of  the  water  to  an  unreasonable  extent.10  The  uses  which  an 

See,  also,  Gutierrez  v.  Wege,  145  Gal.  reasonable,  and  the  right  must  be  ex- 

730,   79  Pac.  449 ;   Anaheim  etc.  Co.  ereised  so  as  to  do  the  least  possible 

v.  Fuller,  150  Cal.  327,  88  Pac.  978;  injury  to  others.     There  must  be  no 

Nesalhous  v.   Walker,   45   Wash.   621,  unreasonable    detention    or    consump- 

88  Pac.  1032.  tion  of  the  water."     Union  etc.  Min. 

7  Jones   v.   Adams,   19   Nev.    78,   3  Co.  v.  Farris,  2   Saw.   176,  Fed.  Cas. 

Am.    St.   Rep.    788,   6   Pac.   442,  -and  No.  14,371,  8  Morr.  Min.  Rep.  90. 
repeated  in  Union  Min.  Co.  v.  Dang-  8  Meng   v.  Coffey,  67  Neb.  500,  108 

berg,   81   Fed.    73,     "Irrigation   must  Am.  St.  Rep.  697,  93  N.   W.  715,  60 

be  held  in  this  climate  to  be  a  proper  L.   R.   A.   610. 

mode   of   using   water   by   a   riparian  9  Citing   Vernon    Irr.    Co.    v.   Los 

proprietor,  the  lawful  extent  of  the  Angeles,  106  Cal.  237,  39  Pac.  762. 
use  depending  upon  the  circumstances  10  Citing  Sampson  v.  Hoddinott,   1 

of     each     case.     With    reference     to  Com.   B.,  N.   S.,   590,  3  Jur.,  N.   S. 

these  circumstances,  the  use  must  be  243. 


814  (3d  ed.)    Pt.  IV.    THE  COMMON  LAW  OF  RIPARIAN  RIGHTS.    §  748 

upper  riparian  owner  may  make  of  a  stream  for  purposes  of  irriga- 
tion must  be  judged,  in  determining  whether  they  are  reasonable, 
with  reference  to  the  size,  situation  and  character  of  the  stream,  the 
uses  to  which  its  waters  may  be  put  by  other  riparian  owners,  the 
season  of  the  year,  and  the  nature  of  the  region.  These  circum- 
stances differ  in  different  cases,  and  what  use  is  reasonable  must  be 
largely  a  question  of  fact  in  each  case.11  Some  things,  however,  are 
clearly  unreasonable,  and  it  may  be  laid  down  absolutely  that  the 
upper  owner,  in  using  the  water  for  irrigation,  must  not  waste,  need- 
lessly diminish,  or  wholly  consume  it,  to  the  injury  of  other  owners, 
nor  so  as  to  prevent  reasonable  use  of  it  by  them  also. ' ' 12 

The  principle  that  it  is  entirely  a  question  of  degree  is  set  forth 
in  a  leading  Massachusetts  case,13  saying:  "It  has  sometimes  been 
made  a  question  whether  a  riparian  proprietor  can  divert  water 
from  a  running  stream  for  purposes  of  irrigation;  but  this,  we 
think,  is  an  abstract  question,  which  cannot  be  answered  either  in 
the  affirmative  or  negative,  as  a  rule  applicable  to  all  cases.  That 
a  portion  of  the  water  of  a  stream  may  be  used  for  the  purpose  of 
irrigating  land  we  think  is  well  established  as  one  of  the  rights  of 
the  proprietors  of  the  soil  along  or  through  which  it  passes;  yet  a 
proprietor  cannot,  under  color  of  that  right,  or  for  the  actual  pur- 
pose of  irrigating  his  own  land,  wholly  abstract  or  divert  the  water- 
course, or  take  such  an  unreasonable  quantity  of  water,  or  make 
such  unreasonable  use  of  it,  as  to  deprive  other  proprietors  of  the 
substantial  benefits  which  they  might  derive  from  it  if  not  diverted 
or  used  unreasonably."  In  a  New  York  case  it  is  said  he  may  use 
the  water  "for  the  purpose  of  irrigation  of  his  lands  when  the 
amount  used  is  reasonable  and  not  out  of  proportion  to  the  size 
of  the  stream."14  In  Kent's  Commentaries  it  is  said:  "If  I  am 
the  first  person  who  applies  the  water  of  a  running  stream  to  the 
purpose  of  irrigation  or  a  mill,  I  cannot  afterward  be  lawfully  dis- 
turbed in  any  essential  degree,  in  the  exercise  of  my  right,  though 

11  Citing   Lux   v.    Haggin,   69   Cal.  gin,  69  Cal.  255,  10  Pac.  674;  Harris 
255,  10  Pac.  674;  Baker  v.  Brown,  55  v.  Harrison,  93  Cal.  676,  29  Pac.  325; 
Tex.  377;  Harris  v.  Harrison,  93  Cal.  Gould  v.  Eaton,  117  Cal.  539,  49  Pac. 
676,  29  Pac.  325;   Minnesota  Loan  &  577,    38    L.    R.    A.    181;    Coffman    v. 
Trust  Co.  v.  St.  Anthony  Falls  Water  Bobbins,    8     Or.    279,   8     Morr.    Min. 
Power  Co.,   82   Minn.  505,  85   N.  W.  Rep.  131;  Gillett  v.  Johnson,  30  Conn. 
520;  Embrey  v.  Owen,  6  Ex.  353,  20  180. 

L.    J.    Ex.    212;    Pitts    v.    Lancaster  13  Elliott  v.  Fitchburg  Ry.  Co., '10 

Mills,  13   Met.    (Mass.)    156.  Gush.   193-195,   57  Am.  Dec.  85. 

12  Citing  Union  Mill  Co.  v.  Dang-  14  Pierson    v.     Speyer,    178     N.   Y. 
berg,   2  Saw.  450,  Fed.  Cas.  No.  14,370,  270,  102  Am.  St.  Rep.  499,  70  N.  E. 
8  Morr.  Min.  Rep.  113;  Lux  v.  Hag-  799. 


§  748  Ch.  32.     EEASONABLE  RIPARIAN  USE.         (3d  ed.)  815 

I  may  not  have  enjoyed  it  for  twenty  years ;  provided  the  water  be 
used  by  me  reasonably,  so  as  not  to  divert  the  natural  course  of  the 
stream  from  the  lands  below,  or  essentially  destroy  the  same  use  of 
it,  as  it  naturally  flowed  over  adjacent  lands."15  In  a  Pennsyl- 
vania case:  "It  is  a  well-recognized  rule  that  a  riparian  proprietor 
may,  jure  naturae,  divert  water  from  a  stream  for  domestic  pur- 
poses and  for  the  irrigation  of  his  land";  adding  that  the  extent 
for  irrigation  depends  on  whether  it  is  reasonable  under  all  the  cir- 
cumstances.18 In  a  case  in  Maine  it  is  said  that  a  riparian  pro- 
prietor may  diminish  volume  for  irrigation,  provided  he  does  not 
do  so  unreasonably,  which  "depends  much  upon  the  nature  and  size 
of  the  stream  as  well  as  the  use  to  which  it  is  subservient. ' ' 17 

In  a  comparatively  early  English  case  the  right  to  irrigate  was 
recognized,18  and  it  was  clearly  set  forth  in  another  decision  upon 
which  the  principles  set  forth  in  the  foregoing  quotations  are  un- 
doubtedly directly  or  indirectly  founded.  Baron  Parke  said  in 
Embrey  v.  Owen : 19  "  This  must  depend  upon  the  circumstances 
of  each  case.  On  the  one  hand,  it  could  not  be  permitted  that 
the  owner  of  a  tract  of  many  thousand  acres  of  porous  soil,  abut- 
ting on  one  part  of  the  stream,  could  be  permitted  to  irrigate  them 
continually  by  canals  and  drains,  and  so  cause  a  serious  diminution 
of  the  quantity  of  water,  though  there  was  no  other  loss  to  the 
natural  stream  than  that  arising  from  the  necessary  absorption 
and  evaporation  of  the  water  employed  for  that  purpose.  On  the 
other  hand,  one's  common  sense  would  be  shocked  by  supposing 
that  a  riparian  owner  could  not  dip  a  watering-pot  into  the  stream 
in  order  to  water  his  garden,  or  allow  his  family  or  his  cattle  to 
drink  it.  It  is  entirely  a  question  of  degree,  and  it  is  very  difficult, 
indeed  impossible,  to  define  precisely  the  limits  which  separate  the 
reasonable  and  permitted  use  of  the  stream  from  its  wrongful  ap- 
plication; but  there  is  often  no  difficulty  in  deciding  whether  a 
particular  case  falls  within  the  permitted  limits  or  not. ' ' 20 

15  Kent's     Commentaries,    pt.    VI,  ing   of   the   ground   had   been   spoken 
lee.  52,  Browne's  ed.,  p.  631.  of    as    'being    the    most    natural    and 

16  Messinger's  Appeal,  109  Pa.  285,  ordinary       effects       of       burns      and 
4  Atl.  162.  waters,'    and    probably    a    reasonable 

17  Davis   v.    Getchell,    50    Me.    605,  use    for   that   purpose   would    be   sus- 
79  Am.  Dec.  636.  tained   (see  Embrey  v.  Owen   (1851), 

18  Miner  v..  Gilmour,   12   Moore  P.  6    Ex.   353,   20  L.   J.   Ex.   212),   pro- 
C.  156,  14  Eng.  Reprint,  861.  vided    it    was    not    excessive    in    view 

19  6  Ex.  352,  20  L.  J.  Ex.  212.  of  the  size  of  the  stream,  and  of  the 

20  Says    a    Scotch    authority:     "In  needs  of  the  lower  heritors,  and  care 
the  earliest  of  these  cases  the  water-  was   taken   to   return   the   whole  stir- 


816  (3d  ed.)    Pt.  IV.    THE  COMMON  LAW  OF  EIPAEIAN  RIGHTS.    §  749 

(3d  ed.) 

§  749.  Same — Turner  v.  James  Canal  Co. — The  recent  Cali- 
fornia case  of  Turner  v.  James  Canal  Co.21  is  worth  stating  at  some 
length,  and  contains  an  instructive  exposition  of  the  law.  It  was 
held,  per  Mr.  Justice  Shaw,  that  what  is  a  reasonable  use  for  irriga- 
tion depends  on  the  facts  of  the  case,  and  where  water  is  taken 
from  a  slough  connecting  with  the  stream,  regard  must  be  had  to 
the  quantity  of  water  in  the  slough  as  compared  to  that  in  the 
stream,  the  quantity  the  slough  is  capable  of  naturally  receiving 
from  the  river,  the  quantity  of  land  of  each  claimant,  their  respec- 
tive interests  and  requirements,  and  all  other  circumstances  show- 
ing the  needs  of  each.  In  this  case  Fresno  Slough  at  ordinary  times 
connected  only  with  the  San  Joaquin  River,  being  filled  with  water 
therefrom,  rising  and  falling  with  the  varying  height  of  that  river, 
but  having  no  regular  current  of  its  own.  At  times  of  high  summer 
floods,  the  opposite  end  of  the  slough  connects  also  with  another 
river  (Kings  River)  and  a  lake  (Tulare  Lake),  and  receives  water 
at  that  end  also,  and  there  will  be  a  flow  from  one  end  to  the  other 
in  either  direction  according  to  whether  the  Kings  or  the  San 
Joaquin  is  at  a  higher  stage.22  Defendant,  owning  land  upon  this 
slough,  took  water  directly  from  the  slough  and  also  from  another 
point  on  San  Joaquin  River  itself  thirty  or  forty  miles  above  its 
land.  All  the  water  so  taken  at  both  points  defendant  used  to  irri- 
gate its  land  along  the  slough.  Plaintiff,  a  riparian  owner  on  the 
San  Joaquin  River  below  the  slough,  had  arranged  a  series  of  levees, 
checks  and  other  works,  to  utilize  the  natural  overflow  in  flood  time 
(so  that  it  covered  an  extensive  area,  depositing  fertilizing  sedi- 
ment, and  naturally  irrigating  it)  for  the  purpose  of  growing  large 
crops  of  grass,  which  will  be  diminished  by  defendant's  diversions. 

It  was  held  that  defendant's  land  bordering  on  the  slough  is  to 
be  regarded  as  riparian  to  one  or  the  other  river,  according  to  which 
is  furnishing  the  slough  with  its  water  at  times  of  use,  and  entitled 
to  a  reasonable  use  of  the  water  of  such  river  (though  it  results 
in  diminishing  the  flow),  in  conjunction  with  other  riparian  owners 
on  such  river,  the  slough  at  such  times  being  in  effect  a  branch  or 

plus  to   the   channel.     The   return   of  21   (1909),    155    Gal.    82,    132    Am. 

any    surplus   is    essential."     Ferguson  St.  Eep.  59,  99  Pac.  520,  22  L.  E.  A., 

on   The   Law   of   Water  in   Scotland,  N.  S.,  401,  17  Ann.  Cas.  823. 

p.   241.     In   Sampson    v.    Hoddinott,  22  The    slough    was    fourteen    miles 

1  Com.  B.,  N.  S.,  603,  Cresswell,  J.,  long  and  crooked,  and  from  one  hun- 

said:   "Irrigation  is  a  riparian  right,  dred  to  two  hundred  feet  wide, 
to  be  exercised  subject  to  the  rights 
of  the  other  riparian  proprietors." 


§  749a  Ch.  32.     SEASONABLE  EIPAEIAN  USE.         (3d  ed.)  817 

inlet  of  such  river.23  In  making  this  reasonable  use,  the  water  may 
be  taken  by  defendant  either  from  the  slough  or  from  the  river 
itself  above  complainant,  so  long  as  complainant's  land  is  not  tres- 
passed upon.  The  quantity  to  be  taken  by  defendant  as  reasonable 
is  to  be  determined  by  the  trial  court,  as  a  question  of  fact.  It  is 
not  to  be  denied  because  such  use  may  interfere  with  the  natural 
irrigation  of  plaintiff's  lands  by  the  overflowing  of  the  river  during 
floods;  saying:  "To  what  extent  such  interference  can  be  allowed 
without  being  unreasonable  is  a  question  of  fact  for  the  trial  court 
upon  a  consideration  of  the  needs  of  each,  the  comparative  benefits 
of  the  respective  uses,  the  comparative  injuries  caused  to  each  by 
the  deprivation  ensuing  from  the  use  by  the  other,  and  all  other 
circumstances  bearing  thereon."  And  regard  must  be  had  "to  the 
quantity  of  land  of  each,  their  respective  interests,  the  quantity 
of  water  in  the  slough,  as  compared  to  that  in  the  river,  the  quan- 
tity the  slough  is  capable  naturally  of  diverting  from  the  river, 
and  all  other  circumstances  affecting  the  question  of  a  reasonable 
division  of  the  water  in  case  there  should  not  be  enough  to  supply 
the  needs  of  all. ' ' 

(3d  ed.) 

§  749a.  Same. — The  enforcement  of  this  rule  in  California  is 
the  so-called  ' '  modification ' '  of  the  common  law  which  some  declare 
to  exist  in  the  West  even  in  States  such  as  California  which  recognize 
riparian  rights.24  The  misnomer  arose  from  a  misinterpretation  of 

23  Mr.   Justice    Shaw   says:   "There  season,  and  irrigation  is  necessary  to 
is  no  more  reason  for  declaring  that  successful  cultivation  of  the  soil,  the 
the  owner  of  lands  on  the  river  can  doctrine    of   riparian    ownership    has, 
prevent    the    owner    of    lands    on   the  by  judicial  decision,  been  modified,  or, 
slough  from  taking  a  reasonable  share  rather,  enlarged,  so  as  to  include  the 
of  the  water  of  the  slough,  although  reasonable   use   of   natural  water   for 
it  may   affect   the  flow   of  the   river,  irrigating  the  riparian  land,  although 
than  of    holding    that    the  owner  of  such  use  may  appreciably  diminish  the 
land  on  the  slough  could  prevent  the  flow  down  to  the  lower  riparian  pro- 
riverman   from   taking  his   reasonable  prietor.'    And  this   must  be  taken  to 
part  of  the  water  of  the  river  to  the  be  the  established  rule  in  California, 
depletion  of  the  water  in  the  slough.  at  least,  where  irrigation  is  thus  nee- 
One  has  as  clear  a  right  as  the  other  essary."     Also,   Wiggins   v.    Muscupi- 
to    the    natural     advantages     of    his  abe  etc.  Co.,  113  Cal.  182,  54  Am.  St. 
situation,  -and  an  equal  right  to  com-  Eep.   348,  45   Pac.   160,  32   L.  E.   A. 
plain    of    the    deprivation   thereof   by  667 ;  Bathgate  v.  Irvine,  126  Cal.  136, 
the  undue  use  of  the  other."  77   Am.   St.   Eep.   158,   58   Pac.   442; 

24  Thus  Harris  v.  Harrison,  93  Cal.  Katz   v.    Walkinshaw,    141    Cal.    116, 
676,  29  Pac.  325,  said:  "But  in  some  99  Am.  St.  Eep.  35,  70  Pac.  663,  74 
of    the     Western    and     Southwestern  Pac.   766,  64  L.  E.  A.  236   (per  Mr. 
States  and  territories,  where  the  year  Justice  Shaw)  ;   City  of  Los   Angeles 
is  divided  into  one  wet  and  one  dry  v.  Los  Angeles  etc.  Co.  (1908),  152 

Water  Rights — 52 


818  (3d  ed.)    Pt.  IV.    THE  COMMON  LAW  OF  RIPAEIAN  EIGHTS.  §  749a 

Lux  v.  Haggin,25  where  the  matter  was  thoroughly  examined  and  it 
was,  on  the  contrary,  shown  that  there  was  nothing  in  this  peculiar 
to  the  West.  If  the  above  authorities  are  not  sufficient  to  show 
that  to  call  it  a  "change"  is  erroneous  and  that  the  California  rule 
is  no  change  or  modification,  then  we  refer  the  reader  to  a  later 
section  where  some  more  are  quoted,20  and  will  now  add  in  this 
place  still  a  few  others. 

In  Washington  the  court  says:27  "It  is  suggested  on  behalf 
of  the  appellants  that  the  use  of  water  for  irrigation  was  practi- 
cally unknown  to  the  common  law.  But,  while  it  may  be  true 
that  it  is  seldom  necessary  or  desirable  to  irrigate  land  in  Eng- 
land by  artificial  means,  yet  it  appears  that  a  reasonable  use 
of  running  streams  for  that  purpose  by  riparian  proprietors  is 
recognized  by  the  courts  of  that  country.  It  is  expressly  so  stated 
in  Gould  on  Waters,1  where  a  number  of  English  cases  are  cited; 
and  in  Pomeroy  on  Riparian  Rights,2  it  is  declared  that  the  common- 
law  rule  that  every  riparian  proprietor  has  an  equal  right  to  the 
use  of  water  as  it  is  accustomed  to  flow,  without  diminution  or 
alteration,  is  subject  to  the  well-recognized  limitation  that  each 
owner  may  make  a  reasonable  use  of  the  water  for  domestic,  agricul- 
tural and  manufacturing  purposes;  and  the  author  there  cites 
several  English  and  many  American  decisions  in  support  of  that 
declaration."  And  the  Oregon  court,3  citing  many  cases,  says: 
"It  is  accordingly  now  quite  generally  held  in  this  country  and  in 
England,  that,  after  the  natural  wants  of  all  the  riparian  pro- 
prietors have  been  supplied,  each  proprietor  is  entitled  to  a  reason- 
able use  of  the  water  for  irrigating  purposes."  And  another  au- 
thority declares  ' '  The  right  at  common  law  of  a  riparian  proprietor 
to  make  a  reasonable  use  of  the  waters  of  a  natural  stream  for  irri- 
gation purposes  is  well  settled,  both  in  England  and  in  the  United 
States."4  A  late  New  Jersey  case  says:  "That  diversion  for  use 

Cal.  645,  93  Pac.  869,  1135;   Turner          25  69  Cal.  255,  at  398  et  seq.,  10 
v.  James  Canal  Co.   (1909),  155  Cal.      Pac.  674.     See  supra,  sec.  673. 
82,  132  Am.  St.  Eep.  59,  99  Pac.  520,          28  Infra  sec   799 

S.LVE-A^N-TS-'r01'sh7Ar-T?arS;  ^Bento'n    v'.    Johncox,    17    Wash. 

M(Pfr  ^-  r  \L  ™WU>8  Q8  277>  61  Am-  St-  EeP-  912>  49  PM. 
v.  Maclay  E.  Co.,  154  Cal.  428,  9o  AC.0'  OQ  T  T>  A  TOT 

Pac.    260    (per   Mr.    Justice    Shaw);  98'  3'  L*  B>  A'  107' 

Lobdell  v.   Simpson,   2   Nev.   274,   90  1  Section  217. 

Am.  Dec.  537,  and  the  decisions  of  the  2  Section  125.                             , 

States  following  the  Colorado  doctrine  3  Jones  v.  Conn,  39  Or.  30,  87  Am. 

rejecting     riparian     rights     in     toto  St.   Eep.   634,   64   Pac.    855,   65    Pac. 

(quoted  supra,  sees.  112,  118,  168),  on  1068,  54  L.  E.  A.  630. 

the   ground   that   the   common  law  is  4  17   Am.    &   Eng.   Ency.   of   Law, 

destructive  of  irrigation.  487. 


§  750  Ch.  32.     EEASONABLE  RIPARIAN  USE.         (3d  ed.)  819 

upon  riparian  lands  and  for  domestic  and  agricultural  or  manu- 
facturing purposes  is  in  its  nature  a  reasonable  use  is  the  settled 
law  of  this  State,  and  diversion  for  irrigation  has  also  been  held 
to  be  a  reasonable  use  in  accordance  with  the  general  American  doc- 
trine and  the  English  authority."  8  In  Year  Book  XII,  Edward  III 
(A.  D.  1331),  plaintiff  complained  of  diversion  from  his  meadow  of 
a  stream  ' '  with  which  water  he  was  wont  to  water  his  cattle,  namely, 
horses,  sheep  and  cows,  and  also  to  fish  therein  and  brew  therewith, 
and  irrigate  [adaquare]  the  aforesaid  meadow  in  time  of  drought," 
and  the  assize  passed  for  plaintiff.  In  another  English  case  6  it  was 
said:  "Now  the  plaintiff  was  not  hurt  as  to  culinary  purposes,  nor 
irrigation,  nor  as  to  his  cattle  nor  drainage,"  and  an  injunction  was 
refused.  As  the  Kansas  court  says:  "The  authorities  are  unani- 
mous to  the  effect  that  the  use  of  water  for  irrigation  is  one  of  the 
common-law  rights  of  a  riparian  proprietor. ' ' 7 

(3d  ed.) 

§  750.    Reasonable  Use   (Concluded). — The  common  law  and 

the  civil  law  are  in  this  the  same.  The  civil  law  is:  "If  water 
passes  between  estates  of  different  owners,  each  one  of  these  can 
use  it  for  the  irrigation  of  his  estate  or  for  any  other  object,  but 
not  the  whole  of  it,  but  only  the  part  which  corresponds  to  him, 
because  both  have  equal  rights,  and  the  one  can  consequently  oppose 
use  of  it  all  by  the  other,  or  even  a  part  considerably  more  than  his 
own."8 

The  principle  of  equality  is  the  foundation  of  the  common  law 
in  all  jurisdictions.  English  and  Eastern  cases  presented  difficul- 
ties of  fact  in  equalizing  uses  for  conflicting  purposes  (e.  g.,  a  mill 
and  an  irrigator  on  the  same  stream).9  The  difference  in  the  "West 
is  merely  the  greater  simplicity  of  fact  because  usually  irrigation 
is  alone  the  predominating  use,  so  that  equality  becomes  more  easily 
attainable  as  a  matter  of  division  and  apportionment. 

5  City  of  .Paterson  v.  East  Jersey          9  The    difficulty     of    satisfactorily 
W.  Co.,  74  N.  J.  Eq.  49,  70  Atl.  484.       adjusti  er   and   irrigation   uses 

6  Elmhirst  v.   Spencer,   2   Macn.   &  .        ° 

G.  45,  42  Eng.  Reprint,  18.  on  the  same  stream  1S  illustrated  in 

7  Clark   v.   Allaman,   71   Kan.   206,  Schodde  v.   Twin   Falls   Co.    (Idaho), 
80  Pac.  584,  70  L.  R.  A.  971.  161  Fed.  43,  88  C.  C.  A.  207;   Men- 

8  Hall's    Mexican    Law,    sec.    1391.  tone  CQ   y>  Redlands  Co.  (1909),  155 
See   the    Code    Napoleon    and    other  J         '» 
civil-law  authorities  given  supra,  sec.  Lal-  3^>  *'                   82»  2 ••  L-  K-  A-> 
685,  and  infra,  sec.  1025  et  seq.  N.  S.,  382,  17-  Ann.  Cas.  1222. 


820  (3d  ed.)    Pt.  IV.    THE  COMMON  LAW  OP  EIPAEIAN  EIGHTS.    §  751 


C.     APPOETIONMENT. 

(3d  ed.) 

§  751.  Apportionment. — To  secure  to  all  contesting  riparian 
proprietors  the  reasonable  use  to  which  each  is  entitled,  a  court 
of  equity  will,  if  necessary,  apportion  the  water.1  This  was  com- 
paratively early  said  to  be  well  settled  and  not  a  Western  innova- 
tion, and  Professor  Pomeroy,  cited  in  the  note,  says  it  is  a  matter 
regularly  within  the  jurisdiction  of  equity.2 

The  apportionment  may  be  measured  in  any  manner  best  calcu- 
lated to  a  reasonable  result.  "Riparian  owners  are  not  to  be  de- 
barred from  use  of  water  because  the  season  is  dry  and  the  strearfi 


1  Harris  v.   Harrison,  93   Cal.   676, 
29  Pac.  325 ;  Wiggins  v.  Museupiabe 
etc.   Co.,     113    Cal.    182,   54   Am.    St. 
Rep.   337,  45   Pac.   160,   32  L.  E.   A. 
667;  Smith  v.  Corbit,  116  Cal.  587,  48 
Pac.    725.     See    Metcalfe   v.   Faucher 
(Tex.  Civ.  App.),  99  S.  W.  1038.     It 
is   said    that   this   will   be   done    with 
percolating     waters      also.     Katz     v. 
Walkinshaw,  141  Cal.  116,  99  Am.  St. 
Eep.  35,  70  Pac.  663,  74  Pac.  766,  64 
L.  B.  A.  236,  as  to  which,  see  Glassell 
v.   Verdugo,    108     Cal.    503,   41    Pac. 
403;  Verdugo  Co.  v.  Verdugo  (1908), 
.15?  Cal.  655,  93  Pac.  1021. 

2  McKee,  J.,  in  Anaheim  W.  Co.  T. 
Semi-Tropic  W.  Co.,  64  Cal.   197,  30 
Pac.  623   (see  for  another  early  case, 
Los  Angeles  v.  Baldwin,  53  Cal.  471)  ; 
Pomeroy  on  Eiparian  Eights,  sec.  15."), 
relying    on    a    New    York    case.     In 
Tyler    v.    Wilkinson,    4    Mason,    413, 
Fed.    Cas.    No.    14,312,   between    mill 
owners,  the  case    (decided  by  Justice 
Story)    was   referred  to   a   master   to 
ascertain,   "as  near  as  may  be  .... 
the    quantity    to    which    the    trench 
owners  are  entitled,   and  to   report  a 
suitable   mode   and   arrangement   per- 
manently to  regulate  and  adjust  the 
flow  of  the  water  so  as  to  preserve  the 
rights   of   all   parties."     In   a   Massa- 
chusetts  case    (Ballou  v.   Inhabitants 
of   Hopkinton,   4   Gray    (Mass.),   324, 
328)  :   "In    regulating    the    rights    of 
mill  owners  and  all  others  in  the  use 
of  a  stream,  wherein  numbers  of  per- 
sons are  interested,  equity  is  able,  by 
one   decree,  to   regulate   their   respec- 
tive rights,  to  fix  the  time  and  manner 
in   which   water   may   be   drawn,   and 
within   what   limits   it   shall   or   shall 


not  be  drawn  by  all  parties,  respec- 
tively," etc.  In  an  Illinois  case  it 
was  held  that  where  two  steam  mills 
or  factories  are  located  on  the  same 
stream,  the  rule  is  this:  "That  so  far 
as  the  water  is  destroyed  by  being 
converted  into  steam,  neither  is  en- 
titled to  its  exclusive  use.  It  is  to 
be  divided  between  them  as  nearly  as 
may  be  according  to  their  respective 
requirements.  If  each  requires  the 
same  quantity,  it  should  be  equally 
divided."  Bliss  v.  Kennedy  (1867), 
43  111.  67.  In  a  recent  New  Hamp- 
shire case,  among  mill  and  power 
users,  apportionment  was  decreed. 
Eoberts  v.  Clarement  Co.,  74  N.  H. 
217,  124  Am.  St.  Eep.  962;  66  Atl. 
485 ;  citing  Home  v.  Hutchins,  71  N. 
H.  128,  51  Atl.  651;  Fowler  v.  Kent, 
71  N.  .H.  388,  52  Atl.  554;  State  v. 
Sunapee  Dam.  Co.,  70  N.  H.  458,  50 
Atl.  108,  59  L.  E.  A.  55;  Blanchard 
v.  Baker,  8  Me.  253,  23  Am.  Dec.  504; 
Patten  Co.  v.  Kankanna  Co.,  70  Wis. 
659,  35  N.  W.  737;  Angell  on  Water- 
courses, sees.  98-101.  Accord,  War- 
ren v.  Westbrook  Co.,  88  Me.  58,  51 
Am.  St.  Eep.  372,  33  Atl.  665,  35 
L.  E.  A.  388.  According  to  a 
French  authority:  "Les  tribunaux 
competemment  saisis  d'une  demande 
en  repartition  d'eaux  sont  autorises 
a  ordonner  1'establissement  des 
ouvrages  necessaires  pour  assurer  a 
chacun  des  riverains  la  portion  d'eau 
qui  lui  est  attribute."  Droit  Civile 
Francais,  by  Aubrey  &  Bau,  4th  ed., 
vol.  Ill,  p.  58.  We  give  these 
authorities  to  show  the  error  of  con- 
sidering this  an  innovation  in  West- 
ern law. 


§  751  Ch.  32.     REASONABLE  RIPARIAN  USE.         (3d  ed.)  821 

low.  "  3  In  apportioning  the  water,  the  court  of  equity  will  adopt 
any  mode  that  is  reasonable  on  the  facts  to  secure  equality.  For 
the  protection  of  the  rights  of  the  several  riparian  proprietors  it 
has  been  held  that  a  court  of  equity  may,  in  a  proper  case,  appor- 
tion the  flow  of  the  stream,  'after  the  natural  wants  of  the  several 
proprietors  have  'been  satisfied,  in  such  a  manner  as  may  seem  equi- 
table and  just  under  the  circumstances.4  The  apportionment  may 
be  by  quantity,  awarding  to  each  a  definite  share  of  flow  for  con- 
tinual use,  as  where  a  riparian  proprietor's  right  was  fixed  at  one 
hundred  inches.5  The  apportionment  may  take  the  form  of  fixing 
fractions  of  the  whole  stream  as  to  surface  flow,  but  as  to  the  sub- 
flow,  this  would  be  impracticable,  and  the  apportionment  must  take 
the  form  of  a  positive  quantity  of  water.8  In  fixing  the  amount. 
however,  the  caution  must  be  insisted  on,  that  present  needs  or  use 
are  not  to  be  made  the  test.  Actual  present  use  does  not  limit 
the  riparian  right  —  future  possible  use  is  equally  to  be  secured,  and 
must  be  figured  in  the  decree.  "The  right  of  a  riparian  owner  to 
the  use  of  the  water  is  not,  however,  measured  by  the  amount  he 
actually  uses,  and  it  is  not  to  be  assumed  that  the  same  amount 
of  land  will  be  cultivated  in  every  succeeding  year.  The  amount 
of  irrigable  land  belonging  to  each  party,  rather  than  the  amount 
of  land  already  under  cultivation,  would  be  properly  made  a  con- 
trolling element  in  adjusting  their  respective  rights  to  the  flow  of 
the  stream  ;  otherwise  a  readjustment  would  be  necessary  whenever 
either  party  should  cultivate  a  greater  or  less  area.  '  '  7 

The  apportionment  may  be  by  periods  of  time  instead  of  by  quan- 
tity or  volume.  In  Wiggins  v.  Muscupiabe  etc.  Co.8  the  court  says  : 
"Whenever  it  should  appear  from  the  circumstances  of  the  case 
that  the  only  method  by  which  either  proprietor  could  have  a  rea- 
sonable use  of  the  stream  would  be  to  allow  to  each  its  full  .flow 
for  a  reasonable  time,  the  only  equitable  adjustment  of  their  rights 
would  be  to  thus  apportion  the  flow.  Whether  this  apportionment 
should  be  for  alternate  weeks  or  alternate  days,  or  for  a  specific 

3  Meng  v.  Coffey,  67  Neb.  500,  108  «  Verdugo     W,     Co.     v.     Verdugo 

Am.  St.  Rep.  697,  93  N.  W.  715,  60  (1908),  152  Cal.  655,  93  Pac.  1021, 
L.  R.  A.  910.  par.  9  of  opinion. 


"   Muscupiabe  etc.   Co., 

n«fi    £T    P    A    fin     V     '  t            fc  113  Cal    194,  54  Am.  St.  Rep.  337,  45 

1068,  54  L.  R.  A.  630,  citing  the  Call-  p&c    16Q    32'L    R    A    66? 

forma  cases  supra. 

5  Lone   Tree   Ditch   Co.   v.    Cyclone  8  113  Cal.  182,  at  193,  54  Am.  St. 

Ditch   Co.,   15   S.   D.   519,  91   N.   W.  Rep.  337,  45  Pae.   160,  32  L.  R.  A. 

355:  Same  v.  Same.  128  N.  W.  596.  667. 


822   (3d  ed.)    Pt.  IV.    THE  COMMON  LAW  OF  RIPARIAN  RIGHTS.    §  751 

portion  of  each  day,  must  be  determined  by  the  facts  of  each  case."  9 
For  example,  in  Harris  v.  Harrison,10  the  leading  case,  each  con- 
testing riparian  owner  was  awarded  the  entire  flow  for  three  and 
one-half  days  out  of  seven.  In  another  case11  plaintiff's  land  con- 
tained about  two  thousand  acres,  and  the  court  found  that  fifty 
acres  of  it  were  adapted  to  cultivation  and  were  susceptible  of  irri- 
gation, and  that  only  three  acres  and  a  fraction  of  defendant's  land 
were  adapted  to  cultivation  and  irrigable ;  and  it  found  that  a  fair 
proportionate  division  of  the  water  of  the  creek,  for  irrigation, 
would  give  to  plaintiffs  the  entire  flow  of  the  creek  for  twenty  days 
out  of  every  twenty-one  days,  and  to  defendant  the  entire  flow  of  the 
creek  for  one  day  out  of  every  twenty-one  days ;  and  judgment  was 
rendered  in  accordance  with  this  finding,  and  affirmed  on  appeal. 

The  apportionment  may  be  applied  to  use  for  domestic  purposes 
("natural  uses")  under  the  view  that  all  uses  are  tested  by  the  rule 
of  reasonableness  in  effect  as  well  as  reasonableness  of  purpose.12 
In  one  case  it  is  said : 13  ' '  But  it  does  not  follow — as  is  also  found 
by  the  court — that  they  are  entitled  to  continuous  flow  of  two  inches 
or  any  other  quantity  in  the  ditch,  and  such  a  requirement,  we 
think,  would  be  unreasonable.  The  flow  of  water  in  a  stream  may, 
and  when  necessary  should,  be  apportioned  between  the  parties  in- 
terested 'by  periods  of  time,  rather  than  by  a  division  of  its  quan- 
tity' and  artificial  means  of  conducting  it  may  be  allowed,  instead 
of  the  natural  channel.  Or,  indeed,  it  would  be  in  the  power  of  the 
court  to  hold  that  the  demands  of  the  plaintiffs  entitled  to  water  for 
domestic  use  are  sufficiently  supplied  by  the  constant  flow  of  the 
water  by  their  places  for  eighteen  hours,  to  which  is  to  be  added, 
in  case  the  rights  of  the  plaintiffs  to  the  other  water  in  question  be 
established,  an  additional  flow  of  two  or  three  hours,  or  p.erhaps 
more. ' ' 14 

Where  the  facts  warrant  it,  an  equal  distribution  will  be  de- 
creed.15 "If  every  riparian  proprietor  on  a  given  stream  owned 
the  same  quantity  of  land,  with  the  same  frontage  on  the  stream, 
and  the  same  susceptibility  to  and  need  of  irrigation,  each  would  be 

9  Accord,    Guiterrez    v.   Wege,    145  *3  Craig  v.  Crafton  Water  Co.,  141 

Cal.  730,  79  Pac.  449.  Cal.  178,  74  Pac.  762. 

?  93   9al-  676>  29  Pac    325  14  g         ,        Anderson  v.  Bassman, 

QI  P       ST"  V'        g6'                 '         '  "0  Fed!  14; 'Rogers  v.  Overacker,   * 

'-1  f™:  Jy.°-  Cal.  App.  333,  87  Pac.  1107. 
12  Wiggins  v.  Muscupiabe  etc.  Co., 

113  Cal.  191,  54  Am.  St.  Rep.  337,  45  15  E.  g.,  Harris  v.  Harrison,  supra. 

Pac.  160,  32  L.  R.  A.  667. 


§  752  Ch.  32.     REASONABLE  RIPARIAN  USE.         (3d  ed.)  823 

entitled  to  precisely  the  same  quantity  of  water  for  that  purpose."  M 
And  in  another  case  it  is  said : ' '  While  the  distribution  of  the  waters 
of  the  stream  among  riparian  owners,  according  to  common-law 
principles,  is  most  difficult,  where  the  stream  is  long,  the  riparian 
owners  numerous,  and  the  quantity  of  water  limited,  yet  in  this  case 
each  of  the  parties  owns  the  same  quantity  of  land,  of  substantially 
the  same  character,  their  necessities  and  conditions  are  substantially 
the  same,  and  an  equal  distribution  of  the  waters  of  the  creek  be- 
tween them  will  mete  out  substantial  justice  as  nearly  as  substantial 
justice  can  be  attained."17 

There  can  be  no  apportionment  by  either  time  or  volume  in  the 
absence  of  evidence  of  all  surrounding  circumstances  bearing  upon 
what  would  be  reasonable.18  No  one  thing  being  conclusive,  evi- 
dence of  the  entire  situation  must  be  forthcoming,  such  as  kind  of 
crops,  relative  acreage,  size  of  stream,  number  of  contestants  and  so 
forth. 

(3d  ed.) 

§  752.  Apportionment  is  an  Equitable  Remedy. — The  appor- 
tionment rests  upon  the  power  of  equity,  as  distinguished  from  law, 
to  give  specific  relief.  An  award  of  a  definite  quantity  of  water  to 
any  riparian  owner  against  other  riparian  owners  is  not  because  his 
substantive  right  is  measured  thereby,  but  because  such  remedy 
affords  more  adequate  relief  than  the  damages  which  a  court  of  law 
could  give. 

The  substantive  right  of  each  is  the  indivisible  one  to  the  reason- 
able use  of  his  own  land,  and  not  to  any  fixed  quantity  of  water. 
As  is  said  in  Lux  v.  Haggin:  "We  anticipate  the  objection  that  this 

is  Charnock   v.   Higuerra,   111   Cal.  136;  Hollett  v.  Davis,  54  Wash.  326, 

479,   52    Am.    St.   Rep.    195,   44   Pac.  103   Pac.   423.     "Before  the   distribu- 

171,  32  L.  R.  A.  190.  tion  can  be  made,  we  must  first  know 

17  Nesalhous   v.   Walker,   45   Wash.  the  quantity  of  water  in  the  stream 
621,  88  Pae.  1032.  from  time  to  time  during  the  irrica- 

18  Coleman   v.   Le   Franc,   137   Cal.  tion  season,  the  acreage  of  each  fqrin 
214,  69  Pac.  1011;   Riverside  W.  Co.  in      crops,      character      thereof,      the 
v.  Sargent,  112  Cal.  230,  44  Pac.  560;  amount   required  for  the  proper  irri- 
Rogers  v.  Overacker,  4  Cal.  App.  333,  gation  of  each  crop  and  kind  of  crop, 
87    Pac.    1107;    Riverside  W.  Co.    v.  time  for  irrigation  of  each,  etc.,  and 
Gage,  89  Cal.  410,  26  Pac.  889;  Mon-  all    of   the   lands   should   be   properly 
tecito  Co.  v.  Santa  Barbara,  151  Cal.  surveyed    and    platted,    showing    its 
377,  90  Pac.  935;   Strong  v.  Baldwin  status  in   this   and  various   other   re- 
(1909),    154   Cal.    150,    129    Am.    St.  spects   in   detail."     Hough   v.   Porter, 
Rep.    141,    97    Pac.    178;    Hudson    v.  51   Or.   318,  95   Pac.   732.     See,   also, 
Dailey,   156   Cal.   617,   105   Pac.   748 ;  S.  C.,  98  Pac.  1083,  102   Pac.  728. 
Perry   v.    Calkins     (Cal.),     113     Pac. 


824  (3d  ed.)    Pt.  IV.    THE  COMMON  LAW  OF  EIPARIAN  EIGHTS.    §  752 

is  not  an  absolute  rule  at  all,  but,  as  said  by  the  judges  in  the  opin- 
ions quoted  from,  the  very  nature  of  the  common  right  is  such  that 
a  precise  rule  as  to  which  is  reasonable  use  by  any  one  proprietor 
for  irrigation  cannot  be  laid  down."19  There  cannot  be  any  per- 
manent severance  or  right  by  any  one  of  them.20  The  apportion- 
ment decreed  in  equity  is  not  a  severance  of  rights  such  as  occurs 
in  partition  between  tenants  in  common,  but  is  an  equitable  ex- 
pedient to  enforce,  under  existing  conditions,  the  unseverable  right 
of  each  to  a  reasonable  use  of  the  riparian  land.  The  apportion- 
ment is  merely  such  as,  "under  the  circumstances  and  facts  in  this 
case,  would  be  a  reasonable  and  equitable  division  of  the  water. ' ' 21 
Consequently,  not  being  a  severance  of  right,  but  an  expedient  of 
remedy  in  each  case,  an  apportionment  made  at  one  time  is  not 
necessarily  conclusive  at  a  later  point  of  time,  when  the  circum- 
stances on  which  it  is  based  have  changed.  The  apportionment 
is  decreed  in  equity  to  afford  equality  on  the  facts  existing  at  the 
time ;  on  the  circumstances  then  existing.  When  the  circumstances 
change  so  that  the  decree  no  longer  represents  equality  and  rea- 
sonable division,  then  a  readjustment  must  be  had  under  the  new 
conditions.  A  system  of  correlative  rights  accepting  as  its  ground 
principle  the  determination  of  what  is  reasonable  in  each  case,  can- 
not in  its  nature  be  a  system  of  permanent  fixedness,  such  as  is 
the  system  of  exclusive  rights  by  appropriation.  The  apportion- 
ment is  permanent  only  if  the  surrounding  circumstances  on  which 
it  was  founded  remain  unchanged,  so  that  the  equality  of  the  ap-' 
portionment  is  not  destroyed;  and  ceases  to  be  permanent  when  a 
subsequent  change  of  circumstances  has  destroyed  the  reas'onable- 
ness  of  the  adjustment.  For  example,  an  apportionment  based  on 
the  quantity  of  water  needed  to  irrigate  certain  crops  where  both 

19  Lux  v.   Haggin,  69  Cal.  255,  at  ordinarily  be  definitely  ascertained  or 
408,  10  Pac.  674.  determined,    although    this    may,    per- 

20  Union   Min.   Co.   Cases,   8   Morr.  haps,   be   done   in   exceptional   cases." 
Min.  Bep.  113,  Fed.  Gas.  No.  14,370,  See,  also,  Hough  v.  Porter,  51  Or.  31% 
2  Saw.'  450,  2  Saw.  176,  Fed.  Gas.  No.  95  Pac.   732,  98  Pac.   1083,   102  Pac. 
14,371.    8    Morr.    Min.    Eep.    90,    and  728;  Lone  Tree  Co.  v.  Cyclone  Co.  (S. 
81  Fed.  73;  Davis  v.  Chamberlain,  51  D.),  128  N.  W.  596;  Tacoma  etc.  Co. 
Or.   304,    98    Pac.    154,    saying:   "It  v.  Smithgall   (Wash.),  108  Pac.  1091. 
necessarily    follows,     therefore,     that  21  Wiggins  v.  Muscupiabe  etc.  Co., 
the  nature  and  extent  of  the  right  of  113  Cal.  189,  54  Am.  St.  Eep.  337,  45 
a  riparian  proprietor  to  the  water  of  Pac.  160,  32  L.  E.  A.    667,  in  which 
a    stream,    for    irrigation,    cannot    be  case    it    is    expressly    recognized    that 
measured  by  any  definite  or  fixed  rule,  there  may  be   contingencies  in  which 
nor  can  the  amount  of  water  to  which  a    readjustment    may    be    necessary, 
he  is  entitled  to  use  for  that  purpose 


§  753  Ch.  32.     REASONABLE  RIPARIAN  USE.         (3d  ed.)  825 

parties  grow  the  same  kind,  would  work  great  injustice  when  one 
party  changes  to  crops  requiring  much  less  water,  while  the  other 
changes  to  crops  needing  more.  To  make  them  share  in  the  same 
proportion  as  before  would  work  great  injustice  to  one,  simply  to 
permit  waste  by  the  other. 

There  are  many  other  changing  conditions.  The  soil  requires 
more  water  at  one  time  than  another;  different  crops  require 
different  quantities  of  water,  and  these  requirements  vary  at  dif- 
ferent stages  of  growth;  humidity  of  seasons  varies,  and  with  it 
vary  both  requirements  and  supply;  one  kind  of  soil  or  crop  re- 
turns more  water  to  the  stream  than  others ;  the  times  of  applying 
the  water  will  be  different  under  changed  methods  of  cultivation; 
the  area  cultivated  or  owned  may  change ;  the  flow  of  streams  con- 
stantly changes ;  new  parties  may  be  involved  in  a  subsequent  con- 
troversy whom  the  former  apportionment  had  not  considered 
because  not  parties  to  the  former  suit,  and  whom  the  former  decree 
cannot  bind.  All  these  things  may  produce  changes  subsequent  to 
an  apportioning  decree  to  such  an  extent  that  the  substantive  right 
of  each  contestant  to  the  equal  reasonable  use  of  their  respective 
lands  is  no  longer  secured  by  the  decree.  Thus  equality  must  de- 
pend upon  circumstances,  and  the  adjustment  must  change  when 
they  change.  An  equalized  distribution  at  one  time  may  become 
very  unequal  at  a  later  point  of  time.22 

The  apportionment  is,  however,  binding  so  long  as  the  situation 
remains  the  same  on  the  facts.  In  such  a  case  it  has  been  held: 
"The  conditions  do  not  appear  to  be  different  now  from-  what  they 
then  were.  The  diversion  by  the  defendants  is  the  same  now  as 
then,  and  while  these  conditions  continue  unchanged,  the  judgment 
rendered  in  the  former  action  operates  as  a  bar  between  the  par- 
ties here " ; 23  and  without  doubt  a  court  of  equity  should  and  will 

22  As  has  been  said:  "In  ordinary  tions  to  which  they  may  respectively 
controversies  between  parties  claim-  be  entitled  may  vary  from  time  to 
ing  only  as  riparian  proprietors  on  time,  in  accordance  with  the  facts  ex- 
the  same  stream  of  water,  a  judgment  isting  at  the  respective  times." 
determining  that  at  a  given  time  the  (Rhodes,  J.,  in  Los  Angeles  v.  Bald- 
parties  are  entitled  to  appropriate  the  win,  53  Cal.  471,  concurring  opinion, 
waters  in  certain  proportions  is  not  In  actual  decision,  the  former  appor- 
necessarily  conclusive  in  a  subsequent  tionment  was  held  binding  because 
action;  for  the  facts  upon  which  rests  the  circumstances  had  not  changed 
the  determination  as  to  the  proportion  in  fact.  See,  also,  Williams  v.  Alt- 
of  the  waters  to  which  the  parties  are  now,  51  Or.  275,  95  Pac.  200,  97  Pac. 
entitled  may  be  materially  different  539.) 

at    the    second   trial In   other  -3  Los  Angeles  v.  Baldwin,  53  Cal. 

words,  where  the  parties  claim  merely  469,  at  470. 
as    riparian    proprietors,  the    propor- 


C28  (3d  ed.)    Pt.  IV.    THE  COMMON  LAW  OF  EIPARIAN  RIGHTS.    §  753 

be  slow  to  proceed  to  a  reapportionment  in  any  but  the  clearest 
cases  showing  that  justice  so  demands,  and  only  where  the  change 
in  situation  of  the  parties  has  been  so  extreme  that  the  equality  of 
the  previous  adjustment  has  been  obviously  destroyed.  To  proceed 
thus  on  light  grounds  would  work  more  injustice  by  inducing  in- 
security, than  justice.  The  adaptability  of  the  common  law  of  ripa- 
rian rights  to  circumstances,  through  its  system  of  correlative  as 
opposed  to  exclusive  rights,  is,  in  the  end,  intended  only  to  secure 
equal  justice  and  right. 

(3d  ed.) 

§  753.     Confined  to  the  Parties  Litigant. — In  deciding  what  is 

a  reasonable  use,  or  in  apportioning  the  water  upon  the  basis  of 
reasonable  use,  the  decision  must  be  confined  to  the  parties  to  the 
litigation  as  already  set  forth.  The  court  cannot  entertain  a  con- 
tention that  a  party's  riparian  right  should  be  measured  by  the 
total  number  of  riparian  proprietors  on  the  stream  when  they  are 
strangers  to  the  action.  For  illustration:  a  stream  flowing  five 
hundred  inches  may  have  fifty  riparian  proprietors  upon  it. 
Other  things  being  equal,  each  would  be  entitled  to  only  ten  inches 
as  against  all  the  rest,  yet  against  the  single  one  with  whom  he 
is  litigating,  this  cannot  be  considered.  It  is  solely  a  question  of 
whether  he  is  unreasonably  interfering  with  his  opponent  without 
regard  to  the  others,  so  that,  as  between  the  two,  the  court  might 
well  decree  two  hundred  and  fifty  inches  to  each.  This  is  a  prin- 
ciple fundamental  in  all  law,  the  law  of  appropriation  as  well. 
This  is  overlooked  in  a  couple  of  Nebraska  cases  which  say  that 
where  there  are  a  large  number  of  riparian  proprietors,  the  right 
of  each  is  infinitesimal  and  a  diversion  does  him  but  nominal  dam- 
age.24 As  between  any  one  of  them  and  another  or  against  a 
nonriparian  diverter,  that  is  far  from  true.  The  rights  of  the 
many  others  have  no  bearing  upon  the  suit.  As  between  the  two 
disputing  riparian  proprietors,  the  sole  question  is  what  is  reason- 
able between  the  two ;  and  as  against  the  nonriparian  diverter,  the 
complaining  riparian  proprietor  is  entitled  to  the  entire  flow  that 
he  could  possibly  use,  regardless  of  what  the  remaining  riparian 
proprietors  may  be  entitled  to.25  The  possible  use  of  a  riparian 

24  McCook    Irr.    Co.    v.    Crews,    70  edly  as   against  an  appropriation  by 
Neb.  115,    102    N.  W.  249;    Cline  v.  a    mere  wrongdoer,    a    riparian    pro- 
Stock,  71  Neb.  70,  102  N.  W.  265.  prietor  may  insist  upon  the  entire  and 

25  Lux  v.  Haggin,  69   Cal.   255,  at  complete  natural  flow  of  the  stream." 
396,  10  Pac.  674,  saying:   "Undoubt- 


§  754  Ch.  32.     REASONABLE  RIPARIAN  USE.         (3d  ed.)  827 

proprietor  can  be  limited  only  by  the  right  of  another  riparian 
proprietor,  and  only  by  such  other  as  contests  it.  Authorities 
setting  forth  this  principle  are  elsewhere  given.1  If  a  determina- 
tion based  upon  the  rights  of  all  the  riparian  proprietors  is  de- 
sired, all  must  be  brought  into  court,  and  must  join  issue  inter  se.z 
This  is  another  instance  in  which  an  apportionment  may  not  be 
permanent ;  that  is,  where  made  originally  between  a  limited  num- 
ber of  private  parties,  and  later  a  suit  arises  with  an  additional 
number  of  riparian  owners  involved. 


D.     MISCELLANEOUS. 

(3d  ed.) 

§  754.  Manner  of  Use. — The  manner  of  use  must  be  reasonable. 
Between  riparian  owners,  waste  will  be  enjoined,3  as  where  water 
is  spread  out  so  that  it  will  be  lost  by  evaporation,4  or  where  it  is 
ditched  through  porous  soil  in  such  a  way  that  much  or  all  is  lost 
before  reaching  the  end  of  the  ditch.5  The  means  of  uSe  are  imma- 
terial and  the  taking  may  be  by  a  seepage  tunnel.6  It  is  no  objec- 
tion to  pumps  that  the  water  is  raised  to  a  level  to  which  it  would 
not  otherwise  flow,  so  long  as  it  is  properly  used  at  that  level.7  Two 
or  more  riparian  proprietors  may  join  in  a  common  diversion  if 
they  take  no  more  than  their  combined  share.8 

A  riparian  owner  may  place  a  dam  in  the  stream  if  he  takes 
thereby  no  more  than 'his  due  proportion  of  the  water.  The  dam 
is  not  per  se  an  improper  structure  as  to  lower  owners.9  And  he 
may,  to  a  reasonable  extent,  store  water  in  the  wet  season  for  his 
sole  use  in  the  dry  season.10  "The  mere  storage  of  water  in  reser- 
voirs by  means  of  dams  is  not,  per  se,  an  unreasonable  use  of  the 
water  of  a  stream  by  an  upper  riparian  owner."  n  But  it  becomes 
wrongful  if  it  causes  waste  or  unreasonable  or  excessive  loss  of  water 

1  Supra,  sec.  626  et  seq.  6  McClintock  v.   Hudson,    141   Cal. 

2  ibid.  275,  74  Pac:  849. 

3  Campbell  v.  Grimes,  62  Kan.  503,  ?  Charnock   v.    Higuerra,    111    Cal. 
€4    Pac.    62;    McClintock  v.  Hudson,  473,   52    Am.   St.   Rep.    195,   44   Pac. 
141   Cal.   275,    74   Pac.    849.     See    15  171,  32  L.  R.  A.   190.     See  Chatfielcl 
L.  R.  A.,  N.  S.,  238,  note.  v.  Wilson,  31  Vt.  358. 

4  Ferrea  v.  Knipe,  28  Cal.  340,  87  8  Verdugo     W.     Co.     v.     Verdugo 
Am.    Dec.    128;    Barneich    v.    Mercy,  (1908),  152  Cal.  655,  93  Pac.  1021. 
136  Cal.  205,  68  Pac.  589.     Cf.  Lawrie  »  Arroyo  D.  Co.  v.  Baldwin  (1909), 
v.  Silsby   (1909),  82  Vt.  505,  74  Atl.  155    Cal.    280,    100    Pac.    874.     Cf. 
94.  Bickett  v.  Morris,  L.  R.  H.  of  L.  47. 

5  Shotwell  v.  Dodge,  8  Wash.  337,  10  Stacey  v.  Delery  (Tex.  Civ.  App. 
36   Pac.   254;    Nielson   v.    Sponer,   46  1909),  122  S.  W.  300. 

Wash.  14,  123  Am.  St.  Rep.  910,  89  "  Parry  v.  Citizens'  W.  W.  Co.,  59 

Pac.   155.  Hun,  199,  13  N.  Y.  Supp.  471. 


828  (3d  ed.)    Pt.  IV.    THE  COMMON  LAW  OF  RIPARIAN  RIGHTS.    §  754 

to  other  riparian  owners,12  or  floods  their  lands  13  or  unreasonably 
accelerates  or  retards  the  flow.14 

Where  a  riparian  owner  owns  both  banks  of  the  stream  where  it 
passes  his  land,  or  where  the  opposite  owner  does  not  object,  he  may, 
as  against  lower  owners,  change  the  course  of  the  stream  on  his 
land  at  will,  so  long  as  he  returns  the  water  to  its  natural  channel 
before  it  reaches  the  land  of  the  lower  owners  and  does  them  no 
undue  damage.15  He  may  change  his  place  of  use  or  of  diversion 
so  long  as  he  does  no  unreasonable  injury  to  lower  owners.16 

If  a  riparian  owner  takes  no  more  than  his  share  of  water  from 
a  stream  for  irrigation,  it  is  immaterial  to  lower  riparian  owners 
at  what  point  the  water  is  diverted  or  by  what  means.17  He  must 
divert  on  his  own  land  as  between  himself  and  the  owner  of  the 
land  his  ditch  crosses ; 18  but  he  is  not  restricted  to  diversions  on 
his  own  land  so  far  as  concerns  strangers  to  the  land  on  which  he 
diverts.  In  Turner  v.  James  Canal  Co.19  Mr.  Justice  Shaw  says: 
"It  has,  during  such  periods,  a  right  to  take  its  share  of  the  water 
from  the  main  river  at  any  convenient  point  thereon,  whether  such 
point  of  diversion  is  upon  its  own  land  or  not,  so  long  as  such  tak- 
ing does  not  injuriously  affect  the  rights  of  owners  of  land  abutting 
upon  the  river  between  the  point  of  diversion  and  the  company's 
riparian  land.  The  fact  that  it  must  carry  the  water  from  the 
river  over  intervening  nonriparian  lands,  belonging  to  other  per- 
sons, is  of  no  consequence.  The  person  over  whose  land  it  is  carried 
could  object,  of  course,  but  other  riparian  owners  have  no  privity 
with  such  third  person,  and  cannot  avail  themselves  of  his  rights, ' ' 
and  they  "have  no  right  to  inquire,  how,  or  by  what  means,  or  at 

12  Ferrea  v.  Knipe,  28  Cal.  340,  87  16  Kidd  v.  Laird,  15  Cal.  161,  .76 
Am.  Dec.  128;  Barneich  v.  Mercy,  136  Am.  Dec.  472,  4  Morr.  Min.  Rep.  571, 
Cal.  206,  68  Pac.  589.  relying  on  common-law   cases;    Whit- 

13  Durga    v.    Lincoln    etc.    Co,    47  *g  v-  C°Achec°  <*>.    ("38),  9  N.  H. 
Wash.  477,  92  Pac.  343.  458>  £2   Am.   Dec.   382 

17  Turner  v.  James  Canal  Co.,  155 

14  Radford    v.    Wood     (1909),    83       Cal.  82,  132  Am.  St.  Rep.  59,  99  Pac. 
Neb.  773,  120  N.  W.  458;   Trullinger       52o,  22  L.  R.  A.,  N.  S.,  401,  17  Ann. 
v.  Howe,  53  Or.  219,  97  Pac.  549,  99       Cas.  823. 

Pac.  880,  22  L.  R.  A.,  N.  S.,  545.  is  Cal.    etc.   Co.   V.    Enterprise   etc. 

15  Mentone    Co.    v.    Redlands    Co.       Co.   (Cal.),  127  Fed.  742. 

(1909),  155  Cal.  323,  100  Pac.  1082,  1»   (1909),  155  Cal.  82,  132  Am.  St. 

22  L.  R.  A.,  N.  S.,  382,  17  Ann.  Cas.  Rep.   59,   99  Pac.   520,   22   L.   R.   A., 

1222;  Cook  v.  Seaboard  etc.  Ry.,  107  N.   S.,   401,   17    Ann.   Cas.   823.     Ac- 

Va.  32,  122  Am.  St.  Rep.  825,  57  S.  cord,  Redwater  Co.  v.  Jones   (S.  D.), 

E.  564,  10  L.  R.  A.,  N.  S.,  966,  and  130  N.  W.  85.     In  the  Fren'ch  law  of 

cases  cited  in  122  Am.  St.  Rep.  830,  riparian  rights  the  same  rule  is  laid 

note;   Wood  v.   Craig,   133   Mo.  App.  down  in  Pardessus,   Traite   de   Servi- 

548,  113  S.  W.  677.  tudes,  vol.  I,  p.  262. 


•§755  Ch.  32.     SEASONABLE  RIPARIAN  USE.         (3d  ed.)  829 

what  place,  he  manages  to  divert  his  share  from  the  stream,  whether 
at  a' point  on  his  own  land,  or  at  some  point  far  above,  where  the 
elevation  of  the  stream  will  be  sufficient  to  carry  it  by  gravity  to 
the  surface  of  his  land,  and  whether  by  a  dam  and  headgate,  or 

by  pumps  and  buckets In  such  cases  it  may  be  that  there 

will  be  an  unreasonable  waste  of  water  by  carrying  it  in  open 
ditches  subject  to  evaporation  and  seepage,  and  to  that  extent  the 
method  and  place  of  diversion  is  a  proper  subject  of  inquiry  in 
determining  the  comparative  rights  of  different  riparian  owners." 
Against  those  below,  one  riparian  owner  may  take  water  from  the 
stream  in  a  prescriptive  ditch  upon  another's  riparian  land  above 
him.20 

(3d  ed.) 

§  755.  Return  of  Surplus. — While  a  riparian  owner  may  divert 
the  water  within  the  above  limitations,  the  surplus  must  in  any  case 
be  returned  to  the  stream,  and  must  be  returned  above  the  upper 
line  of  the  land  of  lower  complaining  riparian  owners,21  whether 
the  use  is  for  irrigation  or  water-power  or  any  other  purpose.22 
The  manner  of  return  is  immaterial.23  An  artificial  flow  may  be 
substituted  in  the  return,  for  the  natural  flow;  that  is,  the  return 
may  be  made  through  a  ditch  instead  of  the  natural  channel,24  and 
it  is  sufficient  if  returned  above  the  lower  owner's  boundary,  though 
this  may  be  below  the  defendant's  boundary,  there  being  interven- 
ing owners  who  do  not  complain.25  One  owning  both  banks  of  a 

20  Logan  v.  Guiehard    (Cal.   1911),  23  Mason  v.  Cotton  (C.  C.),  4  Fed. 
114  Pac.   989,   holding  however,   that  792,  2  McCrary,  82;   Gould  T.  Eaton, 
such  prescriptive  ditch  can  carry  water  117  Cal.  539,  49  Pac.  577,  38  L.  R.  A. 
as  against  lower  owners  only  for  ripar-  181;  Wiggins  v.  Muscupiabe  etc.  Co., 
ian  use,  and  only  (as  against  the  upper  113  Cal.  182,  54  Am.  St.  Rep.  337,  45 
owner)    the   amount   used   during   the  Pac.  160,  32  L.  R.  A.  667. 
prescriptive    period,    even    though    as  24  Mason  v.  Cotton   (Colo.),  4  Fed. 
riparian  owner  he  has  a  right  to  more  792.     See  supra,  sec.  279. 
elsewhere   on  the  stream    (semble).  25  Ibid.,  and  cases  in  last  section. 

T     •        ioc  n^i    IOK        "Tte  meme,   encore  bien   que   le  texte 

21  Batharate  v.  Irvine.  126  Cal.  loo,       -,•.!.*     •>          ,,     ,•  •,      eA4    1Ui- 

c£    T>         use     KQ    ID™     1  A')         littoral    de    1'article    644    oblige    celui 

77   Am    St.   Rep.   158,   58   Pac.   142;  .    ,,.  ,,  B_i«I*    » 

•  %  ~      *;;-  T.T  k    rnn    ma  A  <lul  dctourne  1  eau  sur  sa  propriete.  a 

^en|V'  «o^i  W  71^'finT  S'  ?ui  r^dre  son  cours  naturel  a'la 
St  Rep.  69,  93  N.  W.  715,  60  L.  R.  .  d  f  d  rf  j  .  . 

A    910  •   Nielson  v.  Sponer.  46  Wash.  , 

f;     io9    A«,    St    Tfcrii    Q10     8Q   Par-  du    terram     presentant    quelques    ob- 

14     123    Am.   St.    Rep    910     8  ne    rendoit    1'eau    que    par 

155    saying  a  statute  to  the  contrary  une     s'ortie  ^     J       F£ 

•  would  be  unconstitutional.  fon(Jg  dont   .f  ^  pag   propri,taire> 

22  Weiss  v.  Oregon  etc.  Co.,  13  Or.  mais  avec  le  consentement  du  maitre 
496,  11  Pac.  255 ;   City  of  Canton  v.  de  ce   f onds,   le  voeu   de  la  loi   nous 
Shock,   66    Ohio    St.   19,   90   Am.   St.  sembleroit  etre  suffisamment  rempli." 
Rep.  557,  63  N.  E.  600,  58  L.  R.  A.  Pardessus,  Traite  de  Servitudes,  vol. 
637.  I,  p.  263. 


830  (3d  ed.)    Pt.  IV.    THE  COMMON  LAW  OF  RIPARIAN  RIGHTS.    §  756 

stream  may  change  the  course  of  the  stream  as  he  chooses  within 
his  boundaries,  so  long  as  he  returns  it  to  its  natural  channel  above 
the  lower  claimant  without  unreasonable  diminution.1 

For  example  of  what  is  held  unreasonable,  the  facts  in  a  Nebraska 
case  were:  "It  takes  the  water  away  from  the  creek  to  a  -point 
about  a  mile  off,  where  the  dip  is  but  very  slightly  toward  the  creek, 
and  there  discharges  it,  so  that  practically  all  that  is  not  used  in 
irrigation  will,  in  hot  weather,  evaporate,  and  not  return  to  the 
creek.  On  one  occasion,  when  the  season  was  very  dry  in  that 
vicinity,  and  a  number  of  Mr.  Brewster's  neighbors  below  him  were 
complaining  because  they  could  get  no  water,  it  appears  that  he 
was  turning  the  water  upon  a  meadow  of  eighty  to  one  hundred 
acres,  so  that  it  stood  there  from  one  to  one  and  one-half  inches 
deep ;  and,  as  we  have  seen,  what  was  not  used  was  substantially 
wasted.  This  is  obviously  unreasonable."2 

(3d  ed.) 

§  756.  Possibility  for  a  Riparian  Administrative  System. — This 
system  of  law  would  seem  to  offer  a  field  for  administrative  legisla- 
tion; in  fact,  a  readier  field  than  the  law  of  prior  appropriation. 
Where  the  test  is  what  is  reasonable  in  each  case,  discretion  must 
necessarily  come  into  play,  whereas  where  parties  have  exclusive 
rights  measured  by  priority  there  is  ('theoretically)  little  room  for 
the  exercise  of  discretion  by  administrative  officers  (though  in  prac- 
tice under  the  Wyoming  system  the  water  officials  assume  more  or 
less  to  exercise  discretion,  and  are  thereby  modifying  the  law  of 
appropriation  along  the  lines  of  the  common  law).  Where  the 
common  law  applies  the  test  of  reasonableness,  legislation  is  apt 
and  readily  applied ;  as,  for  example,  in  dealing  with  public  service 
companies.  The  common  law  says  their  rates  and  regulations  must 
be  "reasonable,"  and  accordingly  public  service  commissions  and 
similar  bodies  are  created.  Likewise  under  the  new  law  of  per- 
colating water  "reasonable  use"  has  become  the  test,  and  statutory 
regulation  based  thereon  is  being  adopted.3  As  yet,  however,  there 
has  been  no  attempt  to  provide  a  statutory  system  governing  the 
reasonable  use  of  water  by  riparian  proprietors  among  themselves, 

1  Mentone  Irr.  Co.  v.  Redlands  Co.,       Am.  St.  Rep.  697,  93  N.  W.  715,  60 
.  155  Cal.  323,  100  Pac.  1082.  L.  R.  A.  910. 

2  Meng  T.  Coffey,  67  Neb.  500,  108          *  Infra,  sec.  1142. 


§  756  Ch.  32.     REASONABLE  RIPARIAN  USE.         (3d  ed.)  831 


in  jurisdictions  applying  that  system,  though  there  would  seem  a 
clear  field  for  such  legislation  if  desired.4 

*  See  Head  v.  Amoskeag  Co.,  113       of  Blackstone,  200  Mass.  82,  85  N.  B. 
U.  S.  9,  5  Sup.  Ct.  Rep.  441,  28  L.       880,  18  L.  R.  A.,  N.  S.,  755. 
Ed.  889 ;  Blackstone  Mfg.  Co.  v.  Town 

•   §§  757-764.     (Blank  numbers.) 


832  (3d  ed.)     Pt.  IV.    THE  COMMON  LAW  OF  RIPARIAN  EIGHTS.     §  765 


CHAPTER  33. 

LIMITATIONS  ON  USE  OF  WATER  BETWEEN  RIPARIAN 
PROPRIETORS   THEMSELVES    (CONTINUED). 

USE  CONFINED  TO  RIPARIAN  LAND. 

§  765.  Introductory. 

§  766.  Use  confined  to  riparian  land. 

§  767.  Same. 

§  768.  What  is  riparian  land — Must  touch  the  stream. 

§  769.  Receding  from  the  stream — Recession  of  land  title. 

§  770.  Same. 

§  771.  Same. 

§  772.  Same. 

§  773.  Within  the  watershed. 

§  774.  Bounded  by  reasonableness  in  each  case. 

§  775.  Conclusions  as  to  riparian  land. 

§§  776-794.     (Blank  numbers.) 

"(3d  ed.) 

§  765.  Speaking  generally,  nonriparian  owners  are  excluded  en- 
tirely from  rights  in  the  stream,  and  riparian  owners  are  given 
rights  only  for  use  on  their  own  riparian  land;  they  also  cannot 
take  the  water  to  nonriparian  land,  whether  it  be  their  own  or  some- 
one else's.  The  point  illustrates  the  philosophy  of  the  riparian 
system,  which  presupposes  a  closely  settled  region  with  a  commu,nity 
of  people  living  along  the  banks  of  the  stream  itself  and  sharing 
the  water  between  them,  each  for  his  own  need  alone. 

(3d  ed.) 

§  766.  Use  Confined  to  Riparian  Land. — The  limitation  to  ripa- 
rian land  arises,  first,  by  the  exclusion  of  nonriparian  owners  be- 
cause their  lands  have  no  access  to  the  water;  second,  because  he 
who  has  access  (the  riparian  proprietor)  can  excuse  the  damage 
(which  any  taking  may  cause  to  the  land  of  other  riparian  pro- 
prietors) only  on  the  ground  of  a  reasonable  use  of  his  own  land. 
The  water  in  the  stream  being  nobody's  property,  the  riparian  pro- 
prietors, having  alone  access  to  the  stream,  could  alone  use  it.1  An.y 
use  by  one  at  all  usually  means  damage  to  the  others  (that  is,  a 
lessening  of  the  opportunities  and  benefits  or  natural  ways  in  which 

1  Supra,  sec.  692  et  seq. 


§766  Ch.33.     EIPAEIAN  LAND.  (3d  ed.)  833 

the  flow  contributes  to  the  potentialities  of  their  estates),  but  such 
damage  is  damnum  absque  injuria  so  far  (and  only  so  far)  as  done 
in  the  reasonable  use  of  the  taker's  own  (the  riparian)  land.  Non- 
riparian  owners  are  thus  first  excluded  because  they  have  no  access 
to  the  stream,  and  riparian  owners  (who  have  access)  are  then  con- 
fined to  use  on  their  own  land  as  the  ground  upon  which  the  damage 
which  the  use  causes  to  the  estates  of  other  proprietors  becomes 
damnum  absque  injuria.  This  principle,  that  damage  caused  to 
a  neighbor  in  reasonable  use  of  one's  own  land  (and  there  only) 
is  damnum  absque  injuria,  runs  through  the  entire  law  of  waters, 
as  elsewhere  more  fully  set  forth J*  and,  with  the  fact  of  access, 
founds  the  limitation  to  riparian  use.2 

The  use  of  the  water  by  any  proprietor  is  not  only  limited  to  a 
reasonable  amount,  but  the  water  must  be  used  upon  the  riparian 
land,  from  ownership  of  which  the  right  arises,  and  cannot  be  used 
upon  distant  or  nonriparian  land  to  the  detriment  of  the  riparian 
estate  of  any  riparian  owner.3  Such  land  has  no  access  to  the 
stream,  and  ho  right  to  the  benefit  of  the  water  flows  from  its  owner- 
ship. Water  cannot,  under  the  doctrine  of  riparian  ownership,  be 
used,  to  the  detriment  of  the  riparian  estate  of  any  riparian  owner, 

la  Supra,  sec.  741 ;  infra,  sec.  1119.  Co.,  L.  E.  7  H.  L.  697,  and  cases  cited 

2  "The  theory  upon  which  the  right  throughout  this   chapter.     "It  is  also 
of  a  riparian   owner  to  be  protected  plain  that  he  was  not  the  'owner'  nor 
in  the  use  of  the  waters  of  a  stream  entitled  to  the  'exclusive  use'  of  the 
to  which  his  lands  are  riparian  is  that,  water  by  virtue  of  being  a  riparian 
nature   having   given   these  lands  the  proprietor.     As    such    riparian  owner 
benefit   of   the   flow   and   the   natural  the  water  was  parcel  of  the  land,  and 
advantage  of    its    use    on  the  lands,  he,  as  against  other  riparian  owners, 
one   riparian    owner    may   not   divert  was  entitled  only  to  a  reasonable  use 
these  waters  to  lands  not  riparian,  to  of  the  water  upon  the  riparian  lands, 
the  injury  of  another  riparian  owner  with  no  power  to  convey  it  elsewhere 
who   can   use   them.     The   same   prin-  to     the     detriment    of    the     riparian 
ciple   has   been   applied,   as   we   have  owner    below    him    on    the    stream." 
seen,  to  the  use  of  waters  as  between  Gutierrez   v.   Wege,   145   Cal.   733,  79 
the  owners  of  lands  overlying  a  com-  Pac.   449.     One    case    speaks    of   the 
mon   stratum  of  percolating  waters."  upper   owner,   and   says   he   may   irri- 
Miller  v.  Bay  Cities  W.  Co.,  157  Cal.  gate,  "but  it  is  clear  that  in  no  case 
256,  107  Pac.   115.  can  he,  for  that  purpose  as  against 

3  Gould  v.  Eaton,  117  Cal.  539,  49  the  lower  owner,  use  all  the  water  of 

Pac.  577,  38  L.  E.  A.  181;  Gould  v.       the   stream Whatever   may   be 

Stafford,    77    Cal.    66,    18    Pac.    879;  the  right  of  the  upper  proprietor  to 

Montecito  etc.  Co.  v.  Santa  Barbara,  use  part  of  the  water  of  the  stream  to 

144  Cal.  578,  77  Pac.  1113;   Same  v.  irrigate  his  riparian  land,  he  has  no 

Same,    151    Cal.    377,    90    Pac.    935;  right  to  take  any  of  it  away  to  lands 

Broadmoor  etc.  Co.  v.  Brookside  etc.  not  riparian,"  saying,  because  the  sur- 

(Jo.,  24  Colo.  541,  52  Pac.  792 ;   Bed-  plus  belongs  to  the  man  below.    Gould 

'  irater  Co.  v.  Eeed  (S.  D.),  128  N.  W.       v.  Stafford,  77  Cal.  66,  18  Pac.  879. 
702;  Swindon  W.  W.  Co.  V.  Wilts  etc. 
Water  Bights — 53 


834   (3ded.)     Pt.  IV.     THE  COMMON  LAW  OF  RIPARIAN  RIGHTS.     §767 

to  irrigate  nonriparian  land.4  Riparian  owners  will  be  enjoined 
from  using  the  water  on  nonriparian  lands  owned  by  them.5  The 
above  authorities  hold  the  rule  the  same  whether  the  nonriparian 
use  is  for  nonriparian  owners,  or  for  nonriparian  lands  belong- 
ing to  a  riparian  owner.  Water  cannot  be  taken  to  irrigate  dis- 
tant land  merely  because  the  claimant  also  owns  riparian  land.6 
Nor,  to  the  detriment  of  the  riparian  estates  of  other  owners, 
can  one  riparian  owner  divide  his  estate  and  give  the  portions  now 
separated  from  the  stream  a  right  to  use  the  water.7 

In  stating  the  rule  above  we  have  used  the  words  "to  the  detri- 
ment o'f  the  riparian  estate  of  any  other  riparian  owner,"  though 
there  is  doubt  upon  the  propriety  of  the  insertion  and  much  in  the 
authorities  just  cited  which  would  support  a  rule  that  the  non- 
riparian  use  is  an  injury  per  se,  and  that  no  actual  or  possible 
damage  to  the  riparian  estate  of  the  complaining  proprietor  need 
be  shown.8 

The  rule  against  nonriparian  use  applies  to  "natural"  uses 
(domestic  uses)  with  the  same  force  (if  not  more)  as  to  other  or 
"artificial"  uses.9  The  rule  is  the  same  in  the  civil  law  as  in  the 
common  law.10 

(3d  ed.) 

§  767.  Same. — An  important  illustration  is  that  (except  by 
grant,  condemnation  or  prescription)  water  cannot,  at  common 

4  Gould  v.  Stafford,  77  Cal.  66,  18  non  compris  dans  le  domains  public, 
Pac.  879;  Montecito  etc.  Co.  v.  Santa  pouvait,  pour  1'irrigation  de  ses  pro- 
Barbara,  144  Cal.  578,  77  Pae.  1113;  prietes  non-riverain,  disposer  des  eaux 
Same  v.  Same,  151  Cal.  377,  90  Pae.  dont  il  avait  1'usage  comme  riverain, 
935.  et  le  negative  est  assez  generalement 

5  Anaheim    Water    Co.     v.   Fuller,  admise."     Adding     that     nevertheless 
150  Cal.  327,  88  Pac.  978.  another    nonriparian    proprietor    can- 

6  Boehmer    v.    Big    Rock    etc.    Co.,  not  on  this  ground  prevent  him  from 
117   Cal.   19,   48   Pac.   908;    Gould   v.  getting    a     right    of  way     for    such 
Stafford,  77    Cal.    66,    18    Pac.    879.  waters;    that    is,  only   other   riparian 
See  Alta  etc.  Co.  v.  Hancock,  85  Cal.  proprietors  can  raise  the  point.    Droit 
219,   20   Am.   St.   Rep.   217,    24   Pac.  Civile  Francais,  par  Aubrey  &  Rau, 
645;   McClintock  v.  Hudson,  141  Cal.  4th  ed.,  vol.  Ill,  p.  14,  note  5.     The 
281,  74  Pac.  849;  Anaheim  W.  Co.  v.  authors    further    expressly    say    (Id., 
Fuller,  supra,  17,    note    13) :   "En  d'autres    termes, 

7  See   infra,   sees.   769,   847.  les     proprietaires     des     fonds     inter- 

8  See  the  following  chapters.  mediaires    ne    peuvent    pas,    afin   de, 

9  Bathgate  v.  Irvine,  126  Cal.  135,  faire    reduire    le   volume   d'eau    pour 
77   Am.   St.   Rep.   158,   58   Pac.   442;  lequel    le    passage    est     demande,    se 
Broadmoor  etc.  Co.  v.  Brookside  etc.  prevaloir  des  droits  des  autres  river- 
Co.,  24  Colo.  541,  52  Pac.  792.  ains,   qui   ne   s'opposeraient   pas   a   la 

10  "C'etait  autrefois  un  point  con-       prise  d'eau    tell    qu'elle    a    ete  prati- 
tro'rerse,   que   celui     de    savoir    si   le       quee." 

riverain    d'un    cours     d'eau     nature!, 


§  763  Ch.  33.     RIPARIAN  LAND.  (3d  ed.)  835 

law,  be  taken  from  a  stream  either  by  a  riparian  proprietor  or  a 
nonriparian  proprietor  for  the  purpose  of  sale  off  the  land  where 
taken.  This  has  frequent  application  in  cases  where  cities  or  city- 
supply  water  companies  purchase  a  parcel  of  land  along  a  stream 
and  then  seek  to  divert  the  stream  to  the  city.  Absolute  injunc- 
tions are  usually  granted.  A  further  consideration  of  this  is  left 
to  later  sections.11 

(3d  ed.) 

§  768.  What  is  Riparian  Land — Must  Touch  the  Stream. — "It 
is  only  the  tracts  next  the  stream  which  are  riparian  lands,  and  the 
owners  of  such  tracts  are  alone  riparian  owners."12  They  alone 
.have  the  right  of  access  from  which  the  right  to  take  the  water 
arises.  "It  is,  of  course,  necessary  to  the  existence  of  a  riparian 
right  that  the  land  should  be  in  contact  with  the  flow  of  the 
stream. " 13  To  be  a  riparian  proprietor  one  must  have  access  to 
the  stream  over  the  land  he  owns.  "It  is  by  virtue  of  that  right 
of  access  that  he  obtains  his  water-rights."14 

Land  bordering  oa  a  stream  except  for  a  public  highway  along 
the  bank  is  probably  to  be  regarded  as  riparian  whether  the  pub- 
lic owns  the  fee  or  only  as  easement  in  the  roadbed.  In  Louisiana 
there  is  an  extensive  sj^stem  of  public  levees  to  hold  the  rivers, 
and  the  public  -passes  along  the  levees  as  highways.  The  rule  is 
there  that  land  bordering  upon  the  levee  is  riparian  to  the  stream, 
though  the  levee  be  some  distance  back  from  the  actual  water;  the 
levee  is  regarded  as  the  real  bank  of  the  river.15 

Lands  in  the  flood  plain  of  a  river  give  rise  to  a  difficult  state 
of  facts.  Within  a  broad  shallow  bottom  the  stream  may  meander 
to  and  fro,  at  times  shifting  its  course  from  side  to  side  but  not 
filling  the  whole  except  in  times  of  flood.  The  land  abutting  only 

11  Infra,    sec.    815    et   seq.,   protec-  have  riparian  rights  there  must  be  an 
tion  against  nonriparian  use;  sec.  847,  actual  water  boundary  of  the  land  in 
grants;  sec.  1123,  percolating  water.  connection  with  which  such  rights  are 

12  Lux  v.  Haggin,  69  Cal.   255,  10  claimed."     Axline    v.    Shaw,  35    Fla. 
Pac.  674.  305,  17  South.  411,  28  L.  R.  A.  391. 

13  Lord   Selborne  in  Lyon  v.  Fish-  See,  also,  Buchannan  v.  Ingersoll  Co., 
mongers'  Co.,  L.  R.  1  App.  Gas.  673,  30  Ont.  Rep.  456. 

italics  ours.     See  Strong  v.  Baldwin,  1*  Stockport    W.    W.    v.    Potter,  3 

154  Cal.  150,  129  Am.  St.  Rep.  149,  97  Hurl.  &  C.  300,  10  Jur.,  N.  S.,  1005. 
Pac.    178,    'dictum    contra,    but    deal-  i5  Hart  v.  Board  of  Commissioners, 

ing  with  what  was  in  fact  a  different  54  Fed.  559.     See  McCloskey  v.  Pac. 

matter.     (See  infra,    see.    845,    grant  Coast  Co.;  160  Fed.  794,  87  C.  C.  A. 

inter  partcs.)     "In  order  for  one  to  568. 


836  (3ded.)     Pt.  IV.    THE  COMMON  LAW  OF  RIPARIAN  EIGHTS.     §769 

on  the  outer  rim  of  such  a  bottom  was  held  16  to  be  riparian  when 
the  stream  is  swollen.  On  the  other  hand  when  the  stream  is 
partly  dry,  the  dry  spots  of  what  is  bed  only  in  time  of  flood,  now 
are  on  the  bank.  Such  bottom  land  alternating  between  the  char- 
acter of  bed  and  of  bank  with  the  alternating  water  stage,  has  been 
held  to  be  riparian  land  while  dry.17  In  the  same  case  it  is  left 
open  whether,  in  determining  what  land  is  riparian,  a  river  is  to  be 
considered  only  with  regard  to  the  surface  flow,  or  whether  lands 
abutting  upon  the  wider  space  through  which  the  subflow  extends, 
are  also  to  be  considered  riparian  though  not  touching  the  surface 
flow.  That  is,  whether  land  abutting  upon  the  underflow  is  equiva- 
lent to  abutting  upon  the  stream.18  That  such  land  is  riparian 
seems  to  be  held  in  a  later  case.19 

The  bed  of  the  stream  is  not  riparian  land,  nor  is  one  owning 
only  the  bed  a  riparian  proprietor.  This  was  held  in  Lux  v.  Hag- 
gin,20  with  regard  to  the  owner  of  land  all  covered  by  a  swamp 
through  which  a  moving  current,  as  of  a  stream,  appeared. 

Land  abutting  on  a  bay,  inlet  or  slough  connecting  with  a  stream 
has  a  right  to  use  the  water  equal  to  the  rights  of  those  owning  land 
abutting  upon  the  stream  itself.21 

The  altitude  of  the  bank  does  not  affect  the  riparian  character 
of  the  land  touching  the  stream,  nor  does  a  high  bank  upon  which 
the  water  cannot  be  brought  without  pumps  deprive  the  owner  of 
use  of  the  water.22 

As  between  themselves,  alone,  parties  to  a  contract,  partition  or 
other  conventional  arrangement  may  define  riparian  land  as  they 
like.23  The  present  discussion  is  as  to  the  definition  given  by  law 
between  independent  riparian  proprietors. 

(3d  ed.) 

§  769.    Receding  from  the  Stream — Recession  of  Land  Title. — 

Looking,  for  the  present,  only  to  land  title,  all  land  is,  as  an  out- 

16  Ventura  etc.  Co.  v.  Meiners,  136      Co.    (1910),   157   Cal.   256,   107  Pac. 
Cal.   284,    89    Am.    St.   Rep.    128,    68       115. 

Pac.  818.  20  69  Cal.  255,  at  413,  10  Pac.  674. 

17  Anaheim  etc.  Co.  v.  Fuller,   150           91   m,,^                  To            /-,„     i     n^ 
r*!    337    ss   T>O»    Q7«  1 1    T     T?     A                   Turner     v.     James     Canal     Co. 
TJ  '   Vs     in«9  (1909),  155  Cal.  82,  132  Am.  St.  Rep. 

is i  a        •  '-f  m-70         v,fl  59»  99  Pac-  520>  82  L-  K-  Av  N.  S., 

is  See  infra,  sec.   1078,  subflow.  4  ',    ,7   .         r  '    82q 

19  Where     an    intermittent    stream  01'  17  Ann'  Las>  8*6' 

diffuses  itself  underground  through  a  22  Charnock  v.   Higuerra,   111   Cal. 

valley,  valley  owners  are  riparian  to  4J,8»   52    Am-   St-    ReP-    195>   44   Pac- 

the  stream    though    not    touching  its  -^1>  ^2  L.  R.  A.  190. 

surface   channel.     Semble,   Hudson   v.  23  Strong  v.   Baldwin    (1908),   154 

Dailey,  156  Cal.  617,    105    Pac.  748.  Cal.  150.    See  infra,  sees.  845,  846, 

See,  also,  Miller  v.  Bay  Cities  Water  alienation. 


§  770  Ch.  33.     EIPAEIAN  LAND.  (3d  ed.)  837 

side  limit  so  fax  as  title  is  alone  concerned,  riparian,  which  has 
unbroken  access  to  the  stream  at  the  time  of  use  thereon.  It  has 
access  if  there  is  no  land  intervening  between  it  and  the  stream 
belonging  to  some  other  person.  It  is  all  that  land  of  the  bank- 
owner  extending  back  from  the  stream  until  his  land  continuity 
ends;  that  land  from  the  end  of  which  the  owner  may  pass  con- 
tinuously over  his  own  land  to  the  stream  without  having  to  go 
upon  land  not  owned  by  him.  All  such  land  at  the  time  of  use 
has  access  to  the  stream,  and  is  (so  far  as  land  title  affects  the  ques- 
tion) riparian.  The  past  history  of  the  title  has  no  bearing  upon 
this  simple  question  of  physical  fact  of  access  at  the  time  of  use,  for 
such  land  at  that  time  has  access  and  is  riparian  as  regards  title, 
whether  held  in  one  parcel  from  time  immemorial,  or  built  up  of 
numerous  small  contiguous  parcels  acquired  at  different  times. 
(Remembering  always  that  use  on  even  riparian  land  must  be 
reasonable,  and  that  the  land  must,  as  a  further  test,  lie  within 
the  watershed,  as  hereafter  discussed.) 

We  have  stated  that  the  ownership  at  time  of  use  alone  governs 
the  question  of  title,  because  upon  principle  we  think  this  clear; 
but  the  authorities  are  by  no  means  unanimous.  That  the  boundary 
at  time  of  use  governs  to  exclude  land  formerly  but  not  then  owned, 
there  is  no  conflict.  Land  which  was  once  part  of  an  abutting  tract 
but  was  severed  therefrom  by  sale  ceases,  while  so  severed,  to  be 
riparian  for  the  purpose  of  use  thereon  after  the  sale,  since  its 
right  of  access  is  lost.24  But  that  the  boundary  at  times  of  use 
governs  to  include  contiguous  land  then  owned  by  the  bank  owner, 
being  one  of  several  contiguous  parcels  in  a  chain  reaching  to  the 
stream  but  acquired  at  different  times,  is  a  point  upon  which  the 
authorities  do  not  agree. 

(3d  ed.) 

§  770.     Same. — Upon  this  point  the  Nebraska  court  has  held 

that  riparian  land  stops  at  the  end  of  a  single  original  entry  of 

24  Stockport  W.  W.  v.  H.  Potter  riparian  rights  therein."  Mr.  Justice 

(1864),  3  Hurl.  &  C.  300,  10  Jur.  N.  Shaw,  in  Anaheim  W.  Co.  v.  Fuller, 

S.,  1005;  Alta  L.  Co.  v.  Hancock,  85  150  Gal.  327,  88  Pae.  798,  11  L.  R. 

Cal.  229,  20  Am.  St.  Rep:  217,  24  A.,  N.  S.,  1062.  What  the  effect  of 

Pac.  645 ;  Hudson  v.  Dailey,  156  Cal.  a  declaration  in  the  conveyance  to  the 

617,  105  Pac.  748.  contrary  would  be,  see  infra,  sec.  847. 

"If  the  owner  of  a  tract  abutting  As  against  the  grantor,  his  successors 

upon  a  stream  conveys  to  another  a  and  privies,  a  water-right  may  be 

part  of  the  land  not  contiguous  to  the  conveyed  with  the  severed  portion, 

stream,  he  thereby  cuts  off  the  part  but  not  as  against  other  riparian 

so  conveyed  from  all  participation  in  owners  strangers  to  the  transaction, 
the  use  of  the  stream  and  from 


838   (3d  ed.)     Pt.  IV.     THE  COMMON  LAW  OF  EIPABIAN  EIGHTS.     §  770 

the  land  from  the  government  when  the  land  was 'taken  up  from 
the  public  domain,  and  that  subsequent  entries  or  purchases  of 
contiguous  land  cannot  extend*  the  riparian  character  thereto.25 
The  court  relied  for  this  on  LUX  v.  Haggin.1 

The  passage  in  Lux  v.  Haggin  2  is:  "If,  however,  lands  have  been 
granted  by  patent,  and  the  patent  was  issued  on  the  cancellation 
of  more  than  one  certificate,  the  patent  can  operate  by  relation 
(for  the  purpose  of  this  suit)  to  the  date  of  those  certificates  only, 
the  lands  described  in  which  border  on  the  stream."  This  was 
said  "for  the  purpose  of  this  suit,"  namely,  relating  back  against 
an  appropriator  to  determine  the  dates  of  priority  between  the  rival 
land  grants  and  the  water  appropriation.  Some  land  entries  had 
been  made  before,  and  some  after,  Haggin 's  appropriation.  The 
court  in  Lux  v.  Haggin  distinctly  limited  the  statement  to  the  pur- 
pose of  the  case,  which  was,  that  only  riparian  land  in  private 
title  at  the  date  of  an  appropriation  of  water  could  claim  priority 
for  its  riparian  right,  being  merely  a  reaffirmance  of  the  principle 
discussed  in  Osgood  v.  Water  Company,  cited  and  relied  on,  Lux 
v.  Haggin  saying:3  "It  was  there  held  that  ....  the  rights  of 
the  pre-emption  claimant,  as  against  an  appropriator,  date  only  from 
his  patent  or  certificate  of  purchase."  Some  of  plaintiff's  land 
entries  which  did  not  border  on  the  stream  had  been  joined  to  the 
stream  by  entry  of  the  intervening  land,  such  junction  being  ef- 
fected after  the  water  had  already  been  diverted  while  the  inter- 
vening land  was  yet  public.  The  question  was  as  to  the  date  of  the 
entries,  not  as  to  their  extent.  Lux  y,.  Haggin  consequently  was  not 
at  all  holding  as  to  the  extent  of  riparian  land  at  common  law  be- 
tween riparian  proprietors,  but  holding  that  the  riparian  right  as 
against  a  subsequent  appropriator  relates  back  only  for  the  purpose 
of  the  land  bordering  on  the  stream  whose  certificates  (or  entry4)  ex- 
isted at  the  date  of  the  appropriation ;  a  prior  appropriation  prevail- 
ing against  a  later  entry.  This  is,  of  course,  a  proper  holding.5  It 

25  Crawford  v.  Hathaway,  67  Neb.  back  to  the  certificates  (the  contracts 

325,  108  Am.  St.  Eep.  647,  93  N.  W.  of   the   plaintiffs  and   their   assignors 

781,  60  L.  E.  A.  889.  having  been   fully  performed),  so   as 

1  69  Cal.  255,  425,  10  Pac.  674.  to.  protect  them  in  their  title  to  the 

2  We  quote  the  concluding  sentence,  lands,    with    all   their   incidents.     As- 
which  sums  up  the  whole  passage.  suming     that     the     rights     of     these 

3  At   page  438.     In  regard   to   the  parties  are  to   be  determined  by  the 
Osgood  case  see  supra,  sec.  261.  decision    of    the    question,    Did    the 

•*  See  supra,  sec.  261,  prior  settlers.       plaintiffs    acquire    a,  right    to    their 
5  Lux   v.   Haggin   says:   "Here   the       lands    before    the    defendant    appro- 
plaintiffs    have    patents    which    relate       priated  the  waters?  the  patents  of  the 


§771  Ch.  33.     EIPAEIAN  LAND.  (3d  ed.)  839 

decides  nothing  as  to  the  extent  of  riparian  land  at  common  law,  but 
only  enforces  the  right  of  the  prior  appropriajor  on  public  land 
against  later  entries  of  the  land.  It  held  that  the  entry  of  new 
riparian  land  by  Lux  could  not  thereafter  affect  Haggin's  appro- 
priation, but  decided  or  said  nothing  about  Lux's  right  to  use  water 
on  such  new  land  as  against  other  riparian  proprietors.6  For  the 
court  says  in  Lux  v.  Haggin:  "This  cause  was  not  tried  on  the 
theory  that  defendant  was  a  riparian  owner,"  adding  that  there  was 
not  even  a  pretense  of  such  claim  by  defendant.7 

The  Kansas  court,  upon  the  same  authorities  as  the  Nebraska 
court,  decided  that  the  extent  of  riparian  land  as  between  riparian 
proprietors  is  not  controlled  by  government  subdivisions.8  Nor 
does  the  California  court  accept  the  rule  that  a  governmental  entry 
bounds  riparian  lands  where  the  rights  of  appropriators  inter- 
vening between  successive  entries  are  not  involved. 

This  test  of  governing  riparian  character  by  governmental  en- 
tries arose  from  a  plain  misunderstanding  of  Lux  v.  Haggin  and  is 
indefensible  on  principle.  It  is  not  a  common-law  test  at  all,  for 
in  most  common-law  jurisdictions  governmental  entries  are  un- 
known. 

(3d  ed.) 

§  771.  Same. — The  California  decisions,  while  not  controlled 
by  governmental  subdivisions,  lean  toward  holding  the  extent  of 
riparian  land  to  the  smallest  parcel  touching  the  stream  in  the 
history  of  the  title  while  in  the  hands  of  the  present  owner.  Pur- 
chase of  contiguous  land  does  not,  thus,  make  it  riparian,  whether 
of  new  land  never  before  owned,  or  of  land  formerly  part  of  the 
same  parcel  severed  by  sale  and  then  bought  back.  Thus,  in  Boeh- 
mer  v.  Big  Rock  Irr.  Dist.9  it  is  said,  ''Mere  contiguity  cannot 
extend  a  riparian  right."  This,  of  course,  is  unsound,  if  the 
riparian  right  arises  from  access  to  the  stream,  since  contiguity 

plaintiffs  related  to  the  certificates  of  riparian   owner  .in   reply   could    offer 

purchase    as   against    the    defendant's  certificates  of  a  still  earlier  date;  and 

appropriation."     Lux    v.    Haggin,    69  the  court  held  that  he  could,  but  that 

Cal.  430,  10  Pac.  674.  an  earlier  certificate  not  touching  the 

6  See  69  Cal.  311,  10  Pac.  674.  stream   would   not   prevent  the   diver- 

7  69    Cal.   311,    10    Pac.    674.     The  sion,  if  not  joined  to  the  stream  until 
matter  arose  as  a  question  of  evidence.  after  the  diversion  had  already  taken 
In    his    case    in    chief    the    riparian  place. 

owner  showed  land  titles  of  a  certain  8  Clark  v.   Allaman,   71   Kan,   206, 

date,   and   the  question  was   whether,  80  Pac.  571,  70  L.  R.  A.  971. 

after  the  appropriator  had  showed  an  »  117  Cal.  27,  48  Pac.  908. 
earlie*   diversion   on  public   land,   the 


840  (3d  ed.)     Pt.  IV.     THE  COMMON  LAW  OF  RIPARIAN  RIGHTS.     §  771 

does  not  extend,  but  gives  and  founds  the  right.  The  court  viewed 
it  as  a  question  of  extending  the  right  of  the  originally  owned 
land  to  that  newly  bought,  when,  on  the  contrary,  the  newly  bought 
land  has  an  original  right  of  its  own  just  because  of  its  acquir- 
ing access  or  contiguity  to  the  stream.  The  opinion  also  cited  the 
passage  from  Lux  v.  Haggin  above  quoted,  and  makes  the  same 
mistake  as  to  its  meaning;  namely,  the  passage  referred  to  priority 
between  successive,  Entries  of  public  land  by  a  riparian  owner  as 
against  an  intervening  appropriator  on  public  land,  and  had  no 
reference  to  ripp^ian  "owners  between  themselves.10 

The  same  view  is  taken  in  a  more. recent  case,11  saying  that  land 
conveyed  and  severed  from  a  stream  can  never  again  be  regarded 
as  riparian,  although  it  may  thereafter  be  reconveyed  to  the  per- 
son who  owns  the  part  abutting  on  the  stream  so  that  the  two 
tracts  are  again  held  in  one  ownership,  citing  again  the  passage 
from  Lux  v.  Haggin  above  referred  to.  The  reconveyance  in  the 
case  was  made  after  the  suit  was  brought,  which  probably  dis- 
tinguishes the  case  from  the  rule  it  lays  down.  Such  a  rule  would 
impede  the  settlement  and  irrigation  of  lands,  enforcing  a  restric- 
tion which  may  make  it  impossible  ever  to  put  the  full  capacity 
of  a  stream  to  use  where  subdivision  and  sale  and  repurchase  have 
cut  up  the  historical  continuity  of  title  of  tracts,  so  as  to  leave 
merely  narrow  strips  alone  riparian.  The  quantity  of  riparian 
land  in  the  State  would  be  continually  and  irrevocably  dwindling. 
Whether  land  is  riparian  could  never  be  told  without  an  abstract  of 
title.  It  would  work  in  restraint  of  alienation.  It  is  not  demanded 
in  reason,  since  the  riparian  use  must  not  be  unreasonable  in  its 
character,  whatever  the  extent  of  the  riparian  land.  It  is  not  con- 
sistent with  the  views  expressed  in  the  opinion  in  Alta  etc.  Co.  v. 
Hancock,12  where  it  is  said  that  the  riparian  right  extends  "to  each 
and  every  tract  [1280  acres  in  that  case]  held  as  an  entirety,  border- 
ing upon  the  stream,  whatever  its  extent,"  subject  to  the  restriction 
of  reasonable  use  with  due  regard  to  the  use  required  by  the  other 
proprietors.  It  is  not  consistent  with  the  simple  principle  that  the 
riparian  right  arises  out  of  access  and  extends,  as  concerns  title, 

10  In  Lux  v.  Haggin,  the  appropri-  longed    to    the    riparian    owner?     See 

ation.  intervened  between  the  various  infra,  sec.  814  et  seq. 

entries,     but     in     Boehmer     v.     Big  H  Anaheim    Water    Co.    v.    Fuller, 

Rock     Co.     the     appropriation     was  150  Cal.  327,   88  Pac.  978,  11   L.  R. 

subsequent    to    all    the    land    entries.  A.,  N.  S.,  1062. 

How  could  an  appropriator  properly  12  85  Cal.  230,  20  Am.  St.  Rep.  217, 

Question  how  much  riparian  land  be-  24  Pae.  645. 


§  771  Ch.  33.     EIPAEIAN  LAND.  (3d  ed.)  841 

to  all  land  having  access  *o  the  stream.  It  is  founded  on  a  mis- 
interpretation of  Lux  v.  Haggin.  It  is  emphatically  rejected  in 
Oregon  in  the  well-considered  case  quoted  at  length  in  a  succeeding 
section  13  (and  approved  by  the  supreme  court  of  Kansas),14  where 
the  rule  is  laid  down  as  set  forth  at  the  beginning  of  this  section; 
viz.,  that  all  land  may,  so  far  as  title  is  the  test,  be  riparian,  which 
is  part  of  a  tract  in  one  ownership  abutting  upon  a  stream  and 
having  access  to  it  exclusively  through  land  of  the  same  owner 
(subject,  always,  to  the  use  thereon  being  reasonable  in  degree). 

The  following  is  a  statement  of  the  general  common  law:  "If 
riparian  property  becomes  divided  between  two  owners,  so  that 
one  portion  no  longer  adjoins  the  stream,  that  portion  no  longer 
retains  any  riparian  rights.15  Conversely,  land  which  adjoins 
riparian  land  may  become  itself  riparian  by  becoming  united  there- 
with in  ownership. ' ' 16 

Summing  up  the  authorities:  the  new  land,  with  the  old,  is  held 
riparian  during  the  union  as  one  entire  holding,  in  California,17 
Kansas,18  and  Oregon.19  Such  is  stated  as  the  common  law  of  Eng- 
land,20 and  is  the  civil  law.  It  is  said  not  to  be  riparian,  though  dur- 
ing the  union  into  one,  in  some  cases  in  California  21  and  Nebraska,22 
and  Texas.23  In  these  latter,  however,  the  point  was  but  dictum, 
and  founded  upon  a  misunderstanding  of  a  passage  in  Lux  v. 
Haggin ;  and  a  very  recent  California  case  now  lays  down  the  rule 
in  general  terms  that  all  whose  lands  have  access  to  the  stream  in 
its  natural  situation  have  a  right  to  make  a  reasonable  use  of  the 
water  {<upon  the  lands  so  situated."2* 

As  the  same  question  arises  in  the  civil  law,  a  statement  of  the 
civil  law  may  be  of  some  interest.  The  French  law  is:  "To  solve 
the  question  what  is  contemplated  by  riparian  land,  one  must  look 

13  Jones  v.  Conn,  39  Or.  30,  87  Am.  19  Jones  v.  Conn,  39  Or.  30,  87  Am. 
St.   Kep.   634,   64   Pac.   855,   65   Pae.  St.   Rep.   634,   64  Pac.   855,   65   Pac. 
1068,  54  L.  E.  A.  630.  1068,  54  L.  E.  A.  630. 

14  Clark  v.  Allaman,  71  Kan.  206,  ™  Salmond  on  Torts   p.  252. 

80  Pac.  571,  70  L.  E.  A.  971.  21  Boe hmer  v    Big  Eock  Irr.  Dirt., 

j.  TTT    TTT         T>  x        H7   Cal.   27.   48   Pac.   908:    Anaheim 

15  Citing  Stockport  W    W.  v    Pot-       w    c  p  u        15Q    Cal    327     8g 

ter  (1864),  3  Hurl.  &  C.  300,  10  Jur.,  p&c    97g>  R  L    R'  A     N   g>  1Q6'2> 
N.  S.,  1005.  22  Crawford   Co.   v.    Hathaway,   67 

16  Salmond  on  Torts,  p.  252.     (An  Neb.  325,   108  Am.  St.  Eep.  647,  93 
English  authority.)  N.  W.  781,  60  L.  E.  A.  889. 

17  Alta  etc.  Co.  v.  Hancock,  85  Cal.  23  Watkins  L.   Co.  v.  Clements,  98 
230    20   Am.   St.   Eep.   217,   24   Pac.  Tex.   578,   107   Am.   St.  Eep.  653,  86 
645'  S.  W.  733,  70  L.  B.  A.  964. 

18  Clark  v.  Allaman,  71  Kan.  206,  24  Hudson  v.  Dailey,  156  Cal.  617, 
80  Pac.  571,  70  L.  E.  A.   971.                *  105  Pac.  748. 


842   (3ded.)     Pt.  IV.     THE  COMMON  LAW  OF  KIPAEIAN  EIGHTS.     §772 

to  the  state  of  things  at  the  time  the  claim  of  use  is  made.  Con- 
sequently, when  the  proprietor  of  a  riparian  estate  has  increased  it 
by  new  acquisitions,  or  the  owner  of  an  estate  separated  from  the 
flow  of  a  stream  has  acquired  the  intervening  land  joining  this 
estate  with  another  one  bordering  on  the  stream,  the  right  to  use  the 
water  may  be  claimed  for  all  the  parcels  thus  united  into  one. ' ' 25 

(3d  ed.) 

§  772.     Same. — That  augmentation  of  a  riparian  estate  should 

permit  a  reasonable  use  on  the  new  land,  having  always  in  mind 
the  requirements  of  other  riparian  owners,  is  a  part  of  the  com- 
mon-law foundation  of  the  riparian  right,  viz.,  that  the  rights  of 
riparian  owners  between  themselves  each  to  make  a  reasonable  use 
of  his  entire  land  having  natural  access  to  the  stream  depend  upon 
the  surrounding  circumstances  and  vary  with  the  conditions.  That 
riparian  land  varies  by  diminution  when  part  is  sold  off,  is  estab- 
lished; and  so  it  expands  by  adjacent  purchase.  In  both  cases 
this  leads  to  uncertainties  from  time  to  time,  but  as  much  so  in 
the  former,  where  the  rule  is  not  doubted,  as  in  the  latter.  The 
objection  upon  the  ground  of  making  the  right  vary  by  increase 
is  of  no  more  force  than  in  cases  of  decrease.  The  variation  being 
to  secure  equality  and  reasonable  use,  the  objection  disappears  in 
view  of  the  fact  that  use  on  the  new  land  (though  riparian)  would 
be  permitted  only  if  the  court  (or  jury)  is  convinced  that  such  en- 
larged use  is  not  unreasonable,  and  only  in  clearest  cases  that  no 
unreasonable  damage  is  done  to  other  owners  or  their  estates.  For 
example,  an  apportionment  may  have  been  made  between  riparian 
owners  where  one  riparian  owner  owns  fifty  acres  and  another 
five  hundred  acres,  all  irrigable,  and,  other  things  being  equal,  the 
latter  was  given  five  hundred  inches  of  water  and  the  former  only 
fifty.  A  year  later  the  former  buys  four  hundred  and  fifty  acres 

25  Droit    Civile    Francais,    by    Au-  un    fonds    qui    j    touche,    le    droit    a 

brey  &  Rau,  4th  ed.,  vol.  Ill,  p.  48:  1'usage    des    eaux    peut    etre    reclame 

("Pour    resondre    la    question    de    ce  pour    1'ensemble    des    heritages    aiirsi 

qu'il      faut      entendre      par      fonds  reunis  et   en   seul.")     Citing  authori- 

riverains,      on      doit      s'attacher      a  ties,  viz.:  Daviel  II,  586;  Bertin,  Code 

1'etat     des     lieux     tel      qu'il     existe  des     Irrigations,     Nos.     70     to     74; 

au    moment    ou    est    formee    la    re-  Demolombe,    XI,     152;     Limoges,    9 

clamation     tendant     a     1'usage     des  Aout     1838;    "Dalloz,     1839,     2,     37; 

eaux.     Ainsi,    lorsque    le    proprietaire  contra,    Duranton,   V,   235;    Prudhon, 

d'un  fords  riverain  1'a  augmente  par  Ihi    Domaine    Public    IV,    1426;    Du 

de    nouvelles    acquisitions,    ou   que   le  Curroy,  Bonnier  et  Eoustam,  II,  271. 

proprietaire     d'un    fonds    separe    de  Other  civil-law  authorities  are  quoted 

cours  d'eau  en  opere  la  jonction  avec  infra,  sec.   1627. 


3  773  Ch.  33.     RIPARIAN  LAND.  (3d  ed.)  843 

adjoining  and  both  now  own  the  same  amount  of  land  and  have 
the  same  needs.  Is  it  in  consonance  with  the  principle  of  equality 
to  permit  the  one  to  practically  monopolize  the  whole  stream,  when 
their  needs  are  now  equal?  It  would  clearly  not  be  reasonable  in 
all  cases  to  redivide  the  stream  by  halves,  for  expenditures  or 
change  of  position  in  reliance  upon  the  former  division  becomes 
an  important  factor  in  deciding  what  is  reasonable  under  the  new 
conditions.  But  that  is  a  matter  for  the  trial  judge  or  jury  to 
consider,  and  if  he  is  still  convinced  on  all  the  facts  that  a  larger 
share  can  be  apportioned  for  the  other  owner's  now  larger  area 
without  doing  unreasonable  detriment,  then,  if  we  are  correct,  both 
justice  and  the  law  require  that  he  should  so  adjudge.1 

(3d  ed.) 

§  773.  Within  the  Watershed.— Whether  the  riparian  land 
extends  to  all  that  contiguous  tract  in  one  ownership  extending 
back  from  the  stream,  and  having  access  to  it,  at  the  time  of 
use,  or  only  to  the  smallest  such  tract  in  the  history  of  the  claim- 
ant's title,  in  either  case  the  tract  may  recede  far  from  the  stream, 
and  then  a  further  restriction  arises.  While  the  boundary  line 
(however  computed)  is  the  outside  limit,  it  is  not  the  sole  test.2 
As  the  land  recedes  from  the  stream  under  the  same  ownership,  it 
is  a  somewhat  unsettled  question  when  it  ceases  to  be  riparian  in- 
side of  the  above  considered  boundary  line.  There  are  two  rules 
held  by  different  courts  (which,  for  convenience,  we  call  the  Cali- 
fornia Rule  and  the  Oregon  Rule),  viz.:  (1)  The  California  Rule, 
that  it  ceases  within  his  boundary  at  the  top  of  the  watershed.  (2) 
The  Oregon  Rule,  that  it  remains  a  question  of  fact  in  each  ease 
depending  upon  the  reasonableness  of  effect  of  use  thereon  upon 
other  proprietors. 

The  rule  stated  by  the  California  "court  is  that  riparian  land 
stops  with  the  watershed.  Water  used  within  a  watershed  surely 
finds  its  way  back  to  the  stream.3  The  court  says:4  "The  prin- 
cipal reasons  for  the  rule  confining  riparian  rights  to  that  part 
of  lands  bordering  on  the  stream  which  are  within  the  watershed 

1  See  supra,  sec.  752.  3  Montecito  etc.  Co.  v.  Santa  Bar- 

2  Bathgate  v.  Irvine,  126  Cal.  135,       bara    144  Cal.  578,  77  Pac.  1113,  per 
77   Am.   St.   Rep.   158,   58   Pac.   442;       Henshaw    j 

Boehmer,  v.    Big    Rock   etc.    Co.,    117 

Cal.  19,  48  Pac.  908;   Gould  v.  Staf-  •*  Anaheim   etc.   Co.   v.   Fuller,    150 

ford,   77   Cal.  66,   18   Pac.   879.     Se3  Cah  327>  88  Pac.  978,  11  L.  R.  A. 

Alta  etc.  Co.  v.  Hancock,  85  Cal.  219,  N    q     1f1fi0 

20  Am.  St.  Rep.  217,  24  Pac.  645.  "'  °''  1( 


844   (3ded.)     Pt.  IV.     THE  COMMON  LAW  OF  RIPARIAN  EIGHTS.     §773 

are  that  where  th£  water  is  used  on  such  land  it  will,  after  such 
use,  return  to  the  stream,  so  far  as  it  is  not  consumed,  and  that 
as  the  rainfall  on  such  land  feeds  the  stream,  the  land  is,  in  con- 
sequence, entitled,  so  to  speak,  to  the  use  of  its  waters."  Con- 
sequently, under  the  California  rule,  land  beyond  a  watershed, 
though  within  the  continuous  boundary,  is  nonriparian.5  In  the 
recent  case  of  Anaheim  Water  Co.  v.  Fuller  6  the  court  says :  ' '  Land 
which  is  not  within  the  watershed  of  the  river  is  not  riparian 
thereto,  and  is  not  entitled  as  riparian  land  to  the  use  or  benefit 
of  the  water  from  the  river,  although  it  may  be  a  part  of  an  entire 
tract  which  may  extend  to  the  river."  And  in  a  still  later  case 
says : 7  ' '  Moreover,  it  is  without  dispute  in  the  case,  and  so  de- 
clared upon  the  appeal  in  the  144  Cal.  supra,  that  the  lands  upon 
which  the  waters  are  derived  are  valueless  for  agricultural  pur- 
poses, and  the  waters  are  carried  for  use  to  cities,  towns  and  fertile 
lands  beyond  the  watershed.  A  riparian  proprietor's  claim  to 
make  such  use  of  the  waters  of  a  stream  is  of  course  without  legal 
foundation." 

The  Kansas  court  accepted  this  same  rule,  8  saying:  "In  3  Farn- 
ham  on  Waters,  1903,  it  is  said:  'All  conceptions  of  riparian  land 
lead  to  the  conclusion  that  it  is  land  which  is  tributary  to  an<5 
lying  along  a  watercourse,  and  as  soon  as  the  "divide"  is  passed 
and  the  watershed  of  another  stream  is  reached,  the  land  cannot 
be  regarded  as  riparian  with  reference  to  the  former  stream,  and 
since  the  right  to  water  depends  upon  the  land  being  riparian,  the 
destruction  of  the  riparian  character  destroys  the  right  to  irrigate. ' 
Within  these  limits  the  principle  of  equality  of  right  announced 
above  should  .control  the  use  of  water  for  irrigation  purposes  by 
those  whose  land  is  affected  by  the  presence  of  the  stream  irre- 
spective of  the  incidental  matter  of  governmental  subdivision  of  the 
land." 

5  Chauvet  v.  Hill,  93  Cal.  407,  28  Cal.  618,  93  Pac.  881;  Miller  v.  Bay 

Pac.    1066;    Silver   Creek   etc.   Co.   v.  Cities  Co.,  157  Cal.  256,  107  Pac.  115, 

Hayes,    113    Cal.    142,   45   Pae.    191;  6  150  Cal.  327,  88  Pac.  978,  11  L. 

Wiggins    v.    Museupiabe    Water    Co.,  R.  A.,  N.  S.,  1062. 

113  Cal.  182,  54  Am.  St.  Rep.  337,  45  7  Montecito  etc.  Co.  v.  Santa  Bar- 

Pac.  160,  32  L.  R.  A.  667 ;  Bathgate  bara,  151  Cal.  377,  90  Pac.  935. 

v.   Irvine,   126   Cal.   136,   77   Am.   St.  8  Clark   v.   Allaman,   71   Kan.   206, 

Rep.  158,  58  Pac.  442;  Southern  Cal.  80  Pac.  571,  70  L.  R.  A.  971.     See, 

etc.   Co.  v.  Wilshire,   144  Cal.  68,   77  also,  McCarter  v.  Hudson  W.  Co.,  70 

Pac.  767;  Pomona  W.  Co.  v.  San  An-  N.  J.  Eq.  695,  118  Am.  St.  Rep.  754, 

tonio  W.   Co.    (dictum),    (1908),   152  65  Atl.  489. 


§  773  Ch.  33.     RIPARIAN  LAND.  (3d  ed.)  845 

In  the  case  of  Anaheim  W.  Co.  v.  Fuller  9  a  distinction  was  made 
between  the  major  watershed  of  a  stream  system,  and  the  minor 
watershed  of  any  individual  tributary.  It  was  held  that  water- 
sheds of  branch  streams  must  be  considered  separately  from  each 
other  and  from  the  watershed  below  their  junction.  Water  taken 
in  the  watershed  of  a  branch  must  be  used  within  the  watershed  of 
that  branch.  It  will  not  fulfill  the  rule  for  use  within  the  water- 
shed to  use  it  within  the  watershed  of  the  major  stream  system 
if  the  surplus  would  not  flow  back  to  other  owners  on  the  branch 
from  which  taken,  but  flow  to  the  main  stream  through  other 
branches.  Mr.  Justice  Shaw  said:  "Where  two  streams  unite, 
we  think  the  correct  rule  to  be  applied,  in  regard  to  the  riparian 
rights  therein,  is  that  each  is  to  be  considered  as  a  separate  stream, 
with  regard  to  lands  abutting  thereon  above  the  junction,  and  that 
land  lying  within  the  watershed  of  one  stream  above  that  point 
is  not  to  be  considered  as  riparian  to  the  other  stream.  The  fact 
that  the  streams  are  of  different  size,  or  that  both  lie  in  one  general 
watershed,  or  drainage  basin,  should  not  affect  the  rule,  nor  should 
it  be  changed  by  the  additional  fact  that  the  two  watersheds  are 
separated  merely  by  the  summit  or  crown  of  a  comparatively  low 
table-land,  or  mesa,  as  it  is  called  in  the  evidence,  and  not  by  a 
sharp  or  well-defined  ridge,  range  of  hills,  or  mountains.  The 
reasons  for  the  rule  are  the  same  in  either  case. ' ' 10 

»  150  Cal.  327,  88  Pac.  978,  11  L.  sonable  user  by  the  upper  owner;  it 

R.  A.,  N.  S.,  1062.  is  a  confiscation  of  the  rights  of  the 

10  The  limitation  to  the  watershed  lower  owner;  it  is  an  annihilation, 

probably  got  into  the  California  law  so  far  as  he  is  concerned,  of  that 

from  the  English  case  of  Swindon  portion  of  the  stream  which  is  used 

W.  W.  Co.  v.  Wilts  etc.  Co.,  L.  R.  7  for  those  purposes;  and  that  is  done, 

H.  L.  697,  which  is  cited  in  a  num-  not  for  the  sake  of  the  tenement  of 

ber  of  the  California  eases.  Lord  the  upper  owner,  but  that  the  upper 

Cairns,  Chancellor,  said  in  the  Swin-  owner  may  make  gains  by  alienating 

don  case:  "But  the  use  which  has  the  water  to  other  parties  who  have 

been  made  by  the  appellants  of  the  no  connection  whatever  with  any 

water,  and  the  use  which  they  claim  part  of  the  stream It  is  a 

the  right  to  make  of  it  is  not  for  the  matter  quite  immaterial  whether,  as 

purpose  of  their  tenements  at  all,  riparian  owners  of  Wayte's  tenement, 

but  is  a  use  which  virtually  amounts  any  injury  has  now  been  sustained, 

to  a  complete  diversion  of  the  stream,  or  has  not  been  sustained,  by  the 

as  great  a  diversion  as  if  they  had  respondents.  If  the  appellants  are 

changed  the  entire  watershed  of  the  right,  they  would,  at  the  end  of 

country,  and  in  place  of  allowing  the  twenty  years,  by  the  exercise  of  this 

stream  to  flow  toward  the  north,  rlaim  of  diversion,  entirely  defeat  the 

had  altered  it  near  its  source,  so  as  incident  of  property,  the  riparian 

to  make  it  flow  toward  the  south.  right  of  Wayte's  tenement.  That  is 

My  lords,  that  is  not  a  user  of  the  a  consequence  which  the  owner  of 

stream  which  could  be  called  a  rea-  Wayte's  tenement  has  the  right  to 


846  (3ded.)     Pt.  IV.    THE  COMMON  LAW  OF  EIPAEIAN  EIGHTS.     §774 
(3d  ed.) 

§  774.  Bounded  by  Reasonableness  in  Each  Case. — The  Oregon 
court  in  a  well-considered  case  held  that,  within  the  outside  limit 
of  the  owner's  last  boundary  line  (and  placed  that  line  where  his 
contiguity  to  the  stream  stops,  regardless  of  the  history  of  his 
title  or  subdivision  of  his  tract  into  parcels  acquired  at  different 
times)  the  rule  as  to  the  watershed  as  an  inside  limit  is  but  one 
of  reasonableness  depending  upon  the  effect,  under  the  evidence 
in  each  case,  of  the  use  upon  complaining  proprietors,  and  not  a 
hard-and-fast  rule.  Within  the  boundary  of  single  abutting  owner- 
ship, what  land  the  water  may  be  used  upon  is  held  subordinate 
to  what  is  reasonable  -use  in  each  case.  All  such  land  is  considered 
riparian,  but  even  riparian  use  must  be  reasonable,  so  that  the 
fixing  of  an  inside  limit  is  held  not  a  question  of  what  lands  are 
riparian,  but  of  what  use  on  even  riparian  lands  is  a  reasonable  use. 
Consequently,  under  the  Oregon  rule,  how  far  back  from  the  stream 
a  continuous  tract  may  be  irrigated  depends  entirely  upjon  the 
question  whether  the  use  complained  of  is  unreasonable  on  the 
proof,  in  its  effect  upon  the  land  of  the  complaining  proprietor. 
This  is  also  undoubtedly  the  rule  laid  down  in  some  California  cases, 
and  in  general  terms  has  been  approved  in  other  jurisdictions  also.11 

come   into   the   court   of   chancery   to  98   Tex.   578,   107  Am.   St.   Eep.   653, 

get  restrained  at  once  by  injunction  86  S.  W.  733,  70  L.  K.  A.  964. 

or  declaration  as  the  case  may  be."  In    a    Wisconsin    case    it    is    said: 

It    is    evident    that     the     decision  "The    place    where    it    may    use    the 

turned,    not    on    the    fact    of     use  water  for  power  is  restricted  only  by 

beyond  the  watershed,  but  on  the  fact  its    duty    to    refrain  'from    injuring 

of  sale  of  the  water  and  use  on  the  others.     The  court  is  satisfied  of  the 

lands   of   other  persons.     It    did   not  correctness   and   justice   of   its   judg- 

involve   nor   say   anything   about   use  ment.     It  is  not  deemed  to  be  incon- 

beyond  a  watershed  upon  the  taker's  sistent  with  anything  previously  said 

own  land  constituting  part  of  a  con-  or  decided  by  this  court,  or  with  the 

tinuous  tract  touching  the  stream.  decision  of  any  other  court  to  which 

ll  California. — Alta  Co.  v.  Han-  attention  has  been  called.  It  is  tie- 
cock,  85  Cal.  219,  20  Am.  St.  Rep.  lieved  to  be  grounded  impregnably 
217,  24  Pac.  645;  Charnock  v.  upon  that  widely  applied  mandate  of 
Higuerra,  117  Cal.  471,  at  477  et  seq.,  the  law,  "Sic  utere  tuo  ut  alienum  non 
44  Pac.  171.  laedas."  Green  Bay  C.  Co.  v. 

Kansas. — See  Clark  v.  Allaman,  71  Kaukanna   W.   P.   Co.,   90   "Wis.   370, 

Kan.  206,  80  Pac.  571,  70  L.  E.  A.  48  Am.  St.  Eep.  945,  61  N.  W.  1121, 

971.  63  N.  W.  1019,  28  L.  E.  A.  443.     In 

New    TorTc. — Standen   v.    New    Eo-  the  United  States  supreme  court,  Mr. 

chelle    Co.,   91    Hun,   272,   36   N.   Y.  Justice    Holmes   said   in    Hudson    W. 

Supp.    92,   holding   that    the    relative  Co.   v.   McCarter     (1908),   209   U.   S. 

amount   of   watershed   owned   by   ad-  349,  28  Sup.  Ct.  Eep.  529,  52  L.  Ed. 

joining     riparian     owners     will     not  828,   that  "a   riparian   proprietor   has 

affect    their    individual    rights    to    a  no    right    to    divert    waters    for    more 

proper  use  of  the  stream.  than  a  reasonable   distance  from  the 

Texas. — Watkins    Co.    v.    Clements,  body  of  the  stream." 


§  774  Ch.  33.     RIPARIAN  LAND.  (3d  ed.)  847 

We  quote  at  length  from  this  Oregon  decision.12  Mr.  Chief  Jus- 
tice Bean  (now  upon  the  Federal  bench)  delivered  the  opinion. 
The  court  says:  "But  as  we  understand  the  law,  lands  bordering  on 
a  stream  are  riparian,  without  regard  to  their  extent.  After  a 
considerable  search,  we  are  unable  to  find  any  rule  determining  when 
part  of  an  entire  tract  owned  by  one  person  ceases  to  be  riparian." 
And  on  rehearing:  "The  plaintiffs  insist  that  the  court  erred  in 
not  holding  that  the  right  of  a  riparian  proprietor  to  use  the  waters 
of  a,  stream  for  irrigating  purposes  does  not  extend  beyond  the 
watershed,  or  to  lands  not  first  segregated  and  sold  by  the  gov- 
ernment. This  question  was  examined  with  %reat  care  before  the 
opinion  was  formulated.  No  authorities  are  cited  or  arguments 
advanced  in  the  petition  for  rehearing  not  then  fully  examined 
and  considered,  and  therefore  the  conclusion  heretofore  reached  will 
be  adhered  to." 

It  is  not  clear,  on  the  facts  of  the  case,  whether  the  land,  though 
over  a  low  ridge,  was  or  was  not  within  the  major  watershed  of 
the  stream;  but  under  the  recent  California  case  cited  above,  it 
would  have  made  no  -difference  in  California.  It  would  have 
been  held  nonriparian  in  either  case.  The  court  discusses  the 
California  decisions  as  follows: 

"It  would  seem,  therefore,  that  any  person  owning  land  which 
abuts  upon  or  through  which  a  natural  stream  of  water  flows  is  a 
riparian  proprietor;  entitled  to  the  rights  of  such,  without  regard 
to  the  extent  of  his  land,  or  from  whom  or  when  he  acquired 
his  title.  The  fact  that  he  may  have  procured  the  particular  tract 
washed  by  the  stream  at  one  time,  and  subsequently  purchased 
land  adjoining  it,  will  not  make  him  any  the  less  a  riparian  pro- 
prietor, nor  should  it  alone  be  a  valid  objection  to  his  using  the 
water  on  the  land  last  acquired.  The  only  thing  necessary  to  en- 
title him  to  the  right  of  a  riparian  proprietor  is  to  show  that  the 
body  of  the  land  owned  by  him  borders  upon  a  stream.  This  being 
established,  the  law  gives  to  him  certain  rights  in  the  water,  the 
extent  of  which  is  limited  and  controlled  less  by  the  area  of  his 
land  than  by  the  volume  of  water  and  the  effect  of  its  use  upon 
the  rights  of  other  riparian  proprietors.  By  virtue  of  the  owner- 
ship of  land  in  proximity  to  the  stream,  he  is  entitled  to  a  rea- 
sonable use  of  the  water,  which  is  defined  as  '  any  use  that  does  not 
work  actual,  material  and  substantial  damage  to  the  common  right 

12*  Jones  v.  Conn,  39  Or.  30,  87  Am.  St.  Rep.  634,  64  Pac.  855,  65  Pac. 
J068,  54  L.  R.  A.  630. 


848   (3ded.)     Pt.  IV.     THE  COMMON  LAW  OF  EIPAEIAN  RIGHTS.     §774 

which  each  proprietor  has,  as  limited  and  qualified  by  the  precisely 
equal  right  of  every  other  proprietor. ' 13  In  the  determination 
of  what  will  be  considered  such  a  use  in  a  particular  case  the  char- 
acter and  extent  of  the  land,  its  location,  and  the  time  of  acquiring 
the  title  may  all  become,  and  are,  no.  doubt,  important  factors  to 
be  considered;  but  they  are  not  controlling,  and  each  case  must 
depend  entirely  upon  its  own  facts  and  circumstances.  The  case 
of  Boehmer  v.  Irrigation  Dist. 14  would  seem  to  make  the  extent 
of  riparian  rights  depend  upon  the  source  of  title,  rather  than  the 
fact  of  title ;  but  in  Water  Co.  v.  Hancock,15  it  was  expressly  held 
that  all  land  bordering  upon  a  stream  which  is  held  by  the  same 
title — in  that  instance  consisting  of  1,280  acres — is  riparian,  and 
no  distinction  was  made  on  account  of  the  source  of  title.  Again, 
in  Wiggins  v.  Water  Co.16  and  Bathgate  v.  Irvine,17  the  right  of  a 
riparian  proprietor  to  use  the  waters  of  a  stream  for  irrigation 
was  limited  to  the  watershed.  But,  as  we  understand  these  cases, 
the  court  in  each  instance  was  determining  the  rights  of  the  parties 
then  before  it,  and  not  attempting  to  lay  down  an  inflexible  rule 
as  a  guide  in  all  cases.  Nothing  more  was  held  or  decided  than  that 
under  the  claim  alone  of  riparian  rights  the  owner  of  land  cannot, 
to  the  injury  of  another  riparian  proprietor,  take  the  water  be- 
yond the  watershed,  or  onto  lands  held  by  a  title  different  from 
the  title  of  those  through  which  the  stream  flows ;  and  this  all  will 
concede.  The  right  to  make  a  reasonable  use-  of  the  water  of  a 
stream  is  a  right  of  property,  depending  on  the  ownership  of  the 
land  abutting  on  or  through  which  the  stream  flows;  and  whether 
a  given  use  is  reasonable  or  not  is  a  question  of  fact  to  be  deter- 
mined under  the  circumstances  of  each  particular  case.  The  right 
to  use  the  water  belongs  to  the  owner  of  the  land,  and  the  extent 
of  its  exercise  is  not  to  be  determined  by  the  area  or  contour  of 
his  land,  but  by  its  effect  upon  riparian  proprietors." 

This  Oregon  rule  naturally  follows  from  the  doctrine  of  the 
riparian  right  as  one  arising  out  of  access,  to  take  the  water  as 
a  privilege  belonging  to  the  owner  of  all  land  having  access  to 
the  stream,  where  the  taking  does  damage  which  is  damnum  absque 
injuria  if  done  in  the  reasonable  riparian  use  of  another  proprie- 
tor, or  where  the  taking  does  no  damage  at  all  to  the  possibility  of 

13  Citing  Kinney  on  Irrigation,  sec.  16  Supra. 

276.  17  126   Cal.   135,   77   Am.   St.   Rep. 

14  117  Cal.  19,  48  Pac.  908.  158,  58  Pae.  442. 

15  85  Cal.  219,  20  Am.  St.  Rep.  217. 
24  Pac.  645. 


§  775  Ch.  33.     EIPAEIAN  LAND.  (3d  ed.)  849 

use  by  complaining  proprietors.  The  California  watershed  rule 
may  be  regarded  as  based  upon  the  same  principle,  and,  as  a  mat- 
ter of  practice,  fixing  a  convenient  rule  of  fact,  drawn  from  ex- 
perience of  what  is  unreasonable  in  its  effect,  since  water  taken 
beyond  a  watershed  will  not  flow  back  to  the  stream  and  neces- 
sarily excludes  pro  tanto  all  use  thereof  by  others.  The  char- 
acter of  riparian  land  arises  out  of  the  fact  of  access  to  the  stream 
through  the  land;  the  limitation  to  the  watershed  arises  rather  out 
of  consideration  of  reasonable  use  by  a  riparian  owner,  even  though 
his  land  be  riparian  by  virtue  of  his  access  through  it. 

(3d  ed.) 

§  775.     Conclusions  as  to  Riparian  Land. 

(a)     Water  cannot  be  used  on  nonriparian  land  to  the  detri- 
ment of  the  riparian  estate  of  a  riparian  proprietor. 
(&)     To  be  riparian,  land  must  touch  the  stream. 

(c)  The  riparian  character  of  the  land  as  it  recedes  from  the 
stream  stops  when  the  continuity  of    ownership   of  the  land  is 
broken,  because  the  proprietors  of  all  land  beyond  have  no  access 
to  the  stream  through  such  other  land.     Vice  versa,  all  land  is 
.riparian  in  title  which  at  the  time  of  use  is  one  tract  held  in  one 
ownership  abutting  the  stream. 

(d)  The  extent  of  riparian  land  shifts  with  the  boundary,  con- 
tracting with  a  sale  of  part,  and  expanding  with  a  purchase  of 
contiguous  land,  since  the    right  of  access  shifts  correspondingly. 
The  decisions  upon  this  conflict,  however. 

(e)  If  the  boundary  line  is  beyond  a  watershed,  the  riparian 
character  of  the  land  stops  at  the  summit  of  the  watershed. 

(/)  Within  the  watershed  the  land  must  not  be  so  distant  that 
use  thereon  will  be  unreasonable  in  its  effect  upon  the  possibility 
of  use  of  other  riparian  proprietors,  under  all  the  surrounding 
circumstances,  such  as  extent  of  area,  time  of  acquisition  of  land, 
and  the  various  other  aspects  of  each  case. 

Shortly  put,  land  to  be  riparian  must  at  time  of  use  be  a  con- 
tinuous tract  under  one  ownership  (regardless  of  the  history  of 
that  ownership),  touching  the  stream  on  one  side  and  within  the 
watershed  on  the  other,  and  such  that  use  thereon  will  not  unrea- 
sonably interfere  with  the  equally  beneficial  riparian  use  of  other 
riparian  proprietors. 

§§  776-794.     (Blank  numbers.)^ 

Water  Bights — 54 


850  (3ded.)     Ft.  IV.    THE  COMMON  LAW  OF  KIPARIAN  EIGHTS.     §795 


CHAPTER  34. 

PROTECTION  OF  THE   RIGHT— AGAINST  OTHER  RIPA- 
RIAN OWNERS. 

§  795.  Damage  between  riparian   owners. 

§  796.  Possible  damage  to  use  of  complainant's  land  must  be  shown. 

§  797.  Authorities  quoted. 

§  798.  Reductio  ad  dbsurdum, 

§  799.  Damage  to  a  reasonable  degree  not  wrongful. 

§  800.  Damage  to  excess  of  reasonable  degree. 

§  801.  Where  the  damage  is  during  complainant's  nonuse. 

§  802.  Declaratory   decree. 

§  803.  Conclusions. 

§§  804-813.     (Blank  numbers.) 

(3d  ed.) 

§  795.  Damage  Between  Riparian  Owners. — We  now  discuss 
the  right  of  a  riparian  owner  in  the  commonest  form  in  which  it 
has  produced  litigation ;  that  is,  with  regard  to  the  question  whenr 
if  at  all,  must  a  complaining  riparian  owner  show  damage,  and 
what  kind  or  how  extensive  damage,  to  secure  either  legal  or 
equitable  relief.  In  this  chapter  we  consider  this  solely  between 
riparian  owners  among  themselves,  leaving  to  the  next  chapter  the 
consideration  as  between  a  riparian  and  a  nonriparian  owner. 

(3d  ed.) 

§  796.  Possible  Damage  to  Use  of  Complainant's  Land  must 
be  Shown. — The  riparian  proprietor  does  not  make  a  prima  facie 
case  against  another  riparian  proprietor  where  the  former  does  not 
show  any  possibility  of  damage  of  any  kind  to  the  value  of  his  estate 
or  to  the  use  thereof.  It  was  once  insisted  that  the  stream  must 
remain  in  its  natural  state  undisturbed  even  by  one  riparian  owner 
himself,  and  that  any  abstraction  or  diversion  by  one  proprietor 
was  wrongful  to  all  below  him.  As  to  this  it  is  said  in  Kent's 
Commentaries,  in  a  well-known  passage  :l  "  Streams  of  water  are 
!  intended  for  the  use  and  comfort  of  man;  and  it  would  be  unrea- 
sonable and  contrary  to  the  general  sense  of  mankind,  to  debar 
any  riparian  proprietor  from  the  application  of  water  for  domestic, 
agricultural  or  manufacturing  purposes,  provided  the  use  of  water 

1  3  Kent's  Commentaries,  429.    Italics  ours. 


§797  Ch.  34.     BETWEEN  RIPARIAN  OWNERS.        (3d  ed.)  851 

be  made  under  the  limitation  that  he  do  no  material  injury  to  his 
neighbor  below  him,  who  has  an  equal  right  to  the  subsequent  use 
of  the  same  water."  In  Lux  v.  Haggin  2  this  is  commented  upon 
as  follows:  "It  seems  to  us  that  the  foregoing  (although  a  very 
distinct  statement  of  the  general  proposition)  ought  not  to  be  taken 
literally,  unless  the  words  'material  injury'  be  impressed  with  a 
signification  the  equivalent  of  a  substantial  deprivation  of  capacity 
in  a  lower  proprietor  to  employ  the  water  for  useful  purposes." 
And  this  passage  in  Kent  is  restated  in  the  supreme  court  of  the 
United  States,3  further  saying :  ' '  No  one  can  set  up  a  claim  to  an 
exclusive  flow  of  all  the  water  in  its  natural  state,  and  that  what  he 
may  not  wish  to  use  shall  flow  on  till  lost  in  the  ocean."  Justice 
Story  said :  "The  true  test  of  the  principle  and  extent  of  the  use  is, 

whether  it  is  to  the  injury  of  the  other  proprietors  or  not 

The  law  here,  as  in  many  other  cases,  acts  with  reasonable  refer- 
ence to  the  public  convenience  and  general  good,  and  is  not  betrayed 
into  narrow  strictness  subversive  of  common  sense,  nor  into  an 
extravagant  looseness  which  would  destroy  private  rights.  The 
maxim  is  applied,  'Sic  utere  tuo  ut  alienum  non  laedas.'  "  4 

(3d  ed.) 

§  797.  Authorities  Quoted. — Some  other  authorities  may  be 
quoted  from  numerous  jurisdictions.  In  a  late  California  case : 5 
"In  support  of  this  position  plaintiffs  invoke  the  alleged  common- 
law  rule  that  a  riparian  owner  upon  a  stream  is  entitled  as  of  right 
to  the  full  flow  of  the  stream  in  its  natural  course  through  his  land. 
The  cases  are  numerous  wherein  the  right  of  a  riparian  proprietor 
to  have  the  stream  flow  to  his  land  undiminished  by  any  diversion 
made  by  an  appropriator  for  use  on  nonriparian  land  has  been  de- 
clared.6-8 It  is  obvious,  of  course,  that,  if  this  supposed  rule  were 
strictly  enforced  against  riparian  owners,  as  well  as  appropriators, 

2  69  Cal.  255,  10  Pac.  674.  riparian    owner,    knowing,    they    said, 

-   3  Howard    v.    Ingersoll,    13    How.  how   untenable   it  was;    but   only  be- 

381,  14  L.  Ed.  189,  Nelson,  J.  cause  they  claimed  that  defendant  was 

4  Tyler    v.    Wilkinson,    4    Mason,  a    nonriparian    owner    (in    which,    on 
397,  Fed.  Cas.  No.  14,312.  the  facts,  the  court  held  against  plain- 

5  Turner     v.      James      Canal      Co.  tiff). 

(1909),  155  Cal.  82.  132  Am.  St.  Rep.  6-8  Citing  Lux  v.  Haggin,  69  Cal. 

59,  99  Pac.  520,  22  L.  R.  A.,  N.  S.,  396,   10   Pac.   674;    Heilbron   v.   Last 

401,    17    Ann.    Cas.    823    (italics    in-  Chance  etc.  Co.,  75  Cal.  121,  17  Pac. 

serted).     Counsel  filed  a  petition  for  65;   and  Heilbron  v.  Fowler  etc.  Co., 

rehearing  on  the  ground  that  they  did  75  Cal.  432,  7  Am.  St.  Rep.  183,  17 

not  make  this  contention  referred  to  Pac.  535. 
in  the  quotation,  as  against  another 


852  (3ded.)     Pt.  IV.    THE  COMMON  LAW  OF  RIPARIAN  EIGHTS.     §797 

the  waters  of  the  streams  in  the  State  could  not  be  used  at  all,  but 
would  flow  to  the  sea,  or  until  they  disappeared  in  the  sands  and 
washes,  without  benefit  to  anyone,  except  in  the  few  instances  where 
flood  waters  might  escape  naturally  and  flow  upon  lands  situated 
similarly  to  those  of  the  plaintiffs.  The  rule  is  evidently  not  suited 
to  the  conditions  of  a  dry  climate  such  as  we  have  in  this  State.  It 
is  accordingly  well  settled  here  that  each  riparian  owner  has  a  right 
to  a  reasonable  use  of  the  water,  on  his  riparian  land,  for  the  irriga- 
tion thereof,  and  that  the  so-called  common-law  right  of  each  to  have 
the  stream  flow  by  his  land  without  diminution,  is  subject  to  the 
common  right  of  all  to  a  reasonable  share  of  the  water. ' ' 9 

In  a  Nebraska  case 10  it  is  said :  "  As  has  been  seen,  the  common 
law  does  not  give  to  a  riparian  owner  an  absolute'and  exclusive  right 
to  all  the  flow  of  the  water  from  a  stream  in  its  natural  state,  but 
only  the  right  to  the  benefit,  advantage  and  use  of  the  water  flowing 
past  his  land  in  so  far  as  it  is  consistent  with  a  like  right  in  all  other 
riparian  owners."  In  a  case  in  the  Federal  court  of  Nevada,  before 
the  common  law  of  riparian  rights  became  rejected,  it  was  said, 
after  stating  the  leading  authorities:  "From  these  authorities  it 
appears  that  the  use  which  is  unreasonable  is  such  as  works  actual, 
material  and  substantial  damage  to  the  common  right;  not  to  an 
exclusive  right  to  all  the  water  in  its  natural  state,  but  to  the  right 
which  each  proprietor  has  as  limited  and  qualified  by  the  precisely 
equal  right  of  every  other  proprietor."'11 

Likewise  in  Eastern  and  other  jurisdictions.  The  supreme  court 
of  Georgia  recently  said:  "If  the  general  rule  that  each  riparian 
owner  could  not  in  any  way  interrupt  or  diminish  the  flow  of  the 
stream  were  strictly  followed,  the  water  would  be  of  but  little 
practical  use  to  any  proprietor,  and  the  enforcement  of  such  rule 

Would  deny,  rather  than  grant,  the  use  thereof Riparian 

owners  have  a  common  right  in  the  waters  of  the  stream,  and  the 
necessities  of  the  business  of  one  cannot  be  the  standard  of  the 
rights  of  another,  but  each  is  entitled  to  a  reasonable  use  of  the 
water  with  respect  to  the  rights  of  others."  12  In  a  Minnesota  case: 
' '  The  right  of  a  party  to  the  uninterrupted  and  full  use  of  the  water 
as  it  flows  naturally  past  his  land  is  not  an  absolute  right,  but  a 

»  Citing  cases.  2  Saw.  450,  Fed.  Cas.  No.   14,370,  8 

10  Crawford   Co.   v.    Hathaway,    67  Morr.  Min.  Rep.  113.     Italics  ours. 
Neb.   325,  108  Am.   St.  Rep.   647,  93  12  Price  v.  High  Shoals  Co.  (1909), 
N.  W.  781,  60  L.  R.  A.  889.  132  Ga.  246,  64  S.  E.  87,  22  L.  R.  A., 

11  Union    Min.    Co.    v.    Dangberg,  N.  S.,  684. 


§798  Ch.  34.     BETWEEN  RIPARIAN  OWNERS.        (3d  ed.)  853 

natural  one,  qualified  and  limited  by  the  existence  of  like  rights  in 
others."13 

(3d  ed.) 

§  798.  Reductio  ad  Absurdum. — If  it  were  not  thus  true  that 
the  complaining  proprietor  must  show  at  least  a  possibility  of  dam- 
age to  the  use  or  value  of  his  riparian  estate,  when  contesting  with 
another  riparian  proprietor,  there  would  be  absurd  results,  a  re- 
ductio  ad  absurdum  first  suggested  by  Chief  Justice  Shaw  of 
Massachusetts:14  "The  instruction  requested  by  the  plaintiff  is, 
we  think,  founded  on  a  misconception  of  the  rights  of  riparian 
proprietors  in  watercourses  passing  through  or  by  their  lands.  It 
presupposes  that  the  diversion  of  any  portion  of  the  water  of  a 
running  stream,  without  regard  to  the  fitness  of  the  purpose,  is  a 
violation  of  the  right1  of  every  proprietor  of  land  lying  below  on 
the  same  stream,  so  that,  without  suffering  any  actual  or  perceptible 
damage,  he  may  have  an  action  for  the  sole  purpose  of  vindicating 
his  legal  right."  If  this  were  true,  the  learned  judge  concludes, 
and  a  riparian  proprietor  could  have  such  an  action,  ''then  every 
proprietor  on  the  brook  to  its  outlet  in  the  Nashua  River  would  have 
the  same;  and  because  the  quantity  of  diminution  is  not  material, 
every  riparian  proprietor  on  the  Nashua  would  have  the  same  right, 
and  so  every  proprietor  on  the  Merrimac  River  to  the  ocean.  This 
is  a  sort  of  reductio  ad  absurdum  which  shows  that  such  cannot  be 
the  rule  as  was  claimed  by  the  plaintiff."  In  another  leading  case 
it  is  said:  "This  right  to  the  benefit  and  advantage  of  the  water 
flowing  past  his  land  is  not  an  absolute  and  exclusive  right  to  the 
flow  of  all  the  water  in  its  natural  state.  If  it  were,  the  argument 
of  the  learned  counsel  that  every  abstraction  of  it  would  give  a 
cause  of  action  would  be  irrefragable ;  but  it  is  a  right  only  to  the 
flow  of  the  water,  arid  the  enjoyment  of  it,  subject  to  the  similar 
rights  of  all  the  proprietors  of  the  bank  on  each  side  to  the  reason- 
able enjoyment  of  the  same  gift  of  Providence.  It  is  only,  there- 1 
fore,  for  an  unreasonable  and  unauthorized  use  of  the  common  \ 
benefit  that  an  action  will  lie-;  for  such  a  use  it  will.'' 15 

13  Red    River    Co.    v.    Wright,    30  (1908),  196  Mass.  597,  83  N.  E.  310, 

Minn.   249,  44   Am.  Rep.   194,   15   N.  ]3  L.  R.  A.,  N.  S..  1044. 
W.  167.     See,  also,  123  Am.  St.  Rep.  14  Elliott     v.     Fitchburg     Ry.,     10 

912,  note.     See,   also,  Mason  v.   Cot-  Gush.  (Mass.)  191,  57  Am.  Dec.  85. 
ton   (Colo.),  4  Fed.  792,  2  McCrary,  15  Embrey  v.  Owen,  6  Ex.  352,  20f 

82;    Baily  v.   Morland    (1902),  L.  R.  L.  J.  Ex.  212. 
1   Ch.   D.   649;    McNamara   v.   Taft, 


854  (3ded.)     Pt.  IV.    THE  COMMON  LAW  OF  BIPAEIAN  EIGHTS.     §799 

Streams  flow  for  the  benefit  of  all  persons  who  have  land  ad- 
joining, and  not  simply  for  those  persons  only  whose  lands  lie 
at  the  mouth  of  the  stream. 

(3d  ed.) 

§  799.    Damage  to  a  Reasonable  Degree  not  Wrongful. — Not 

only  is  some  showing  of  damage  to  complainant's  estate,  or  to  its 
value,  a  prerequisite  to  an  action  between  riparian  owners,  but, 
further,  the  interference  must  be  shown  to  go  to  an  unreasonable 
extent.  To  a  reasonable  degree,  it  is  a  good  defense  to  the  proprie- 
tor complained  of  that  he  was  acting  in  the  use  of  his  own  riparian 
land.  "  It  is  a  general  rule — in  fact,  a  universal  principle  of  law — 
that  one  may  make  reasonable  use  of  his  own  property,  although 
such  use  results  in  injury  to  another, ' ' 16  and  this  is  but  one  applica- 
tion of  that  rule.  As  discussed  in  a  preceding  chapter,  what  is  a 
reasonable  use  by  one  proprietor  to  which  another  must  submit, 
though  it  interferes  with  the  use  sought  to  be  made  by  such  other,  is 
a  question  of  fact  depending  upon  the  circumstances  in  each  case, 
and  the  authorities  have  there  been  given  at  length. 

Under  the  doctrine  of  appropriation  the  right,  being  founded 
on  priority,  is  exclusive  to  the  extent  of  the  priority,  and  any 
material  interference  with  the  prior  use  is  wrongful.17  But  under 
the  law  of  riparian  rights  no  proprietor  has  an  exclusive  right 
against  the  other  proprietors,  and  no  use  by  another  proprietor 
is  wrongful  unless  it  unreasonably  exceeds  the  equality  of  right 
among  all;  in  the  absence  of  such  excess  any  damage  is  damnum 
absque  injuria.  The  fact  that  one  proprietor's  use  or  possibility 
of  use  is  interfered  with  by  another  is  not  alone  a  wrong  to  him; 
it  must  be  such  interference  as  is  in  excess  of  the  equal  right  of 
the  proprietor  complained  of.  "Each  must  submit  to  that  de- 
gree of  inconvenience  and  hardship  in  the  exercise  of  his  rights 
which  results  from  the  existence  of  like  rights  in  others."  18 

16  Katz    v.    Walkinshaw,    141    Cal.  18  Parker    v.     American    etc.     Co., 
143,  99  Am.  St.  Rep.  35,  70  Pac.  663,       195   Mass.  591,   81 '  N.   E.  468,   10  L. 
74  Pac.  766,  64  L.  E.  A.  236.                     R.  A.,  N.  S.,  584.     See  McFarland,  J., 

See  especially  the  discussion  in  this  in  Fisher  v  Peige  (1902),  137  Cal. 
regard  under  the  law  of  percolating  42>  92  Am-  s*-  Rep.  77,  69  Pac.  618, 

water,  infra,  sec.  1118  et  seq.  59  ^-  «•  A-  33.3' 

Each   riparian  proprietor  is   bound 

17  Hill    v.    Smith,    27    Cal.    482,    4  to  make  such  a  use  of  running  water 
Morr.    Min.    Eep.    597,   speaking   dis-  as  to  do  as  little  injury  to  those  be- 
paragingly  of   the   other  rule  as   one  iow    him     as    is    consistent    with    a 
which   "tolerates   and   winks   at   some  valuable  benefit  to  himself.     Evans  v. 
indeterminate   amount  of   injury"   by  Merriweather,   4   111.    (3   Scam.)    492, 
the  one  to  the  other.  38  Am.  Dec.  106. 


3  799        ;  Ch.  34.     BETWEEN   RIPARIAN   OWNERS.        (3d  ed.)   855 

In  a  recent  California  case  it  is  said  that  "the  determination  as 
to  what  is  the  reasonable  share  of  each  riparian  owner  is  a  question 
of  fact,  to  be  decided  according  to  the  circumstances  of  the  case," 
and  that  "an  upper  riparian  proprietor  is  entitled  to  a  reasonable 
use  for  irrigation,  although  it  may  diminish  the  flow  to  a  lower 
proprietor,  and  put  him  to  substantial  inconvenience  in  his  use  of 
the  stream.  Thus  in  [certain  cases]  it  was  held  that  the  upper 
proprietors  could  be  allowed  to  take  the  whole  stream  for  certain 
hours  or  days,  at  stated  intervals,  and  that  the  use  of  the  lower 
owner  could  be  limited  to  the  intervening  periods,"  and  held  that 
the  fact  that  plaintiff's  low  land  would  be  greatly  benefited  by  its 
overflow  from  an  abutting  stream  during  flood  season  does  not 
entitle  him  to  restrain  diversion  of  a  reasonable  amount  of  water 
for  irrigation  by  upper  riparian  owners,  though  such  diversion 
would  diminish  such  overflow.19 

Authorities  to  this  effect  from  many  jurisdictions  are  here  quoted 
to  show  that  the  rule  is  general,  and  not  confined  to  California  nor 
to  Western  jurisdictions.  A  ruling  in  an  Alabama  case  puts  it: 
"The  defendant  had  the  right,  in  this  form  of  action,  to  maintain 
the  dam,  even  to  the  injury  of  the  plaintiff,  if  there  was  a  reasonable 
and  proper  use  of  the  water."20  In  a  case  in  Maine:  "True,  it  is 
sometimes  said  that  there  must  be  no  diversion  of  the  waters  of  a 
stream;  that  the  riparian  proprietors  above  must  allow  the  water 
to  flow  on  in  undiminished  quantities,  to  the  riparian  proprietors 
below.  But  this  is  not  a  correct  statement  of  the  law.  And  the 
inaccuracy  of  the  statement  has  often  been  pointed  out.  The  true 
rule  is  that  there  must  be  no  unlawful  or  unreasonable  diminution 
or  diversion  of  the  water. "  21  In  Massachusetts :  ' '  The  right  of  the 
owner  of  land  to  the  use  of  a  stream  flowing  through  his  premises, 
so  far  as  such  use  is  reasonable  and  conformable  to  the  usages  and 
wants  with  a  like  reasonable  use  by  the  other  proprietors  of  land 
en  the  same  stream  above  and  below,  is  clear  and  indisputable. ' ' 22 
Mr.  Justice  Cooley  in  Michigan  thus  states  the  rule :  ' '  The  question 
always  is,  not  merely  whether  the  lower  proprietor  suffers  damage 
by  the  use  of  the  water  above  him,  nor  whether  the  quantity  flow- 

19  Turner  v.  James  Canal  Co.,  155       great     loss     by     evaporation.     North 
Cal.  82,  132  Am.  St.  Rep.  59,  99  Pac.       Alabama  etc.  Co.  v.  Jones,   156   Ala. 
520,  22  L.  R.  A.,  N.  S.,  401,  17  Ann.       360,  47  South.  144. 

Cas.  823.  21  Auburn  v.  W.  Co.,  90  Me.  576,  38 

20  But    damages    at    law    will    be      Atl.  561,  38  L.  R.  A.  188. 

granted  if   the   dam   spreads  out   the  22  Fuller  v.  Chieopee  etc.  Co.  (1860) 

water    so    unreasonably    as    to    cause      16  Gray  (Mass.),  43. 


856   (3d  ed.)     Pt.  IV.    THE  COMMON  LAW  OF  EIPAEIAN  EIGHTS.     §  799 

ing  on  is  diminished  by  the  use,  but  whether  under  all  the  circum- 
stances of  the  case  the  use  of  the  water  by  one  is  reasonable  and 
consistent  with  a  correspondent  enjoyment  of  the  right  by  the 
other. "  23  It  is  laid  down  in  New  Hampshire :  "It  is  well-settled 
law  that  in  the  use  of  a  stream  for  domestic,  agricultural,  and 
manufacturing  purposes,  to  which  every  riparian  owner  is  entitled, 
there  may  of  right  be  diminution,  retardation  or  acceleration  of  the 
natural  current,  consistently  with  the  common  right,  and  which  is 

implied  in  the  right  to  .use  it  at  all From  the  nature  of 

the  case,  it  is  incapable  of  being  defined  to  suit  the  vast  variety  of 
circumstances  that  exist ;  but  the  rule  is  flexible,  and  suited  to  the 
growing  and  changing  wants  of  communities. "  24  In  New  York : 
"Damage  to  a  riparian  owner  caused  by  the  erection  of  a  mill  damr 
by  another  riparian  owner  is  to  a  reasonable  degree  damnum  abs- 
que  injuria,"25  and  one  riparian  owner  may  make  a  reasonable  use 
of  the  stream  though  it  lessens  the  benefits  therefrom  derived  by 
another  riparian  owner.26  In  Ohio:  "No  action  can  be  sustained 
for  any  such  use  in  the  water,  whereby  the  quantity  is  diminished 
in  the  stream  or  the  water  caused  to  flow  more  irregularly,  or  to 
flow  back  on  the  land  of  the  proprietor  on  the  stream  above,  unless 
the  damage  occasioned  be  real,  material  and  substantial,  arising 
from  an  unreasonable  or  improper  use,  appropriation,  abstraction, 
or  diversion  of  the  water  from  its  natural  course  or  flow. "  27  In 
South  Carolina:  "For  an  injury  to  one  owner  incidental  to  a  rea- 
sonable use  of  the  stream  by  another  there  is  no  redress.  It  does 
not  necessarily  follow  from  either  the  decrease  in  the  volume  of  the 
water  due  to  its  use  by  the  upper  proprietor  or  the  increase  due 
to  the  storage  by  the  upper  proprietor  that  there  has  been  an  un- 
reasonable use  and  therefore  a  right  of  action  to  the  lower  proprie- 
tor for  any  resulting  injury.  If  it  were  the  rule  that  the  lower 
proprietor  has  the  right  to  have  the  stream  flow  through  his  land 
in  exactly  its  usual  volume,  the  result  would  be  to  destroy  the 
equality  of  right  of  all  the  proprietors  of  the  land  through  which 
the  stream  flowed,  and  give  to  the  lowest  proprietor  a  monopoly 
of  its  use. ' ' 28 

23  Dumont    v.    Kellogg,    29    Mich.  26  Thomas   v.    Brockney,    17   Barb. 
423,  18  Am.  Eep.  102.  (N.  Y.)  659. 

24  Norway  Co.  v.  Bradley    (1872),  27  McElvoy  v.  Goble  (1856),  6  Ohio 
52  N.  H.  86.  St.  187. 

25  Palmer    v.    Mulligan,    3    Caines  28  Mason  v.  Apalache  Mills  (1908), 
Rep.  308,  2  Am.  Dec.  270.  81  S.  C.  554,  62  S.  W.  400,  871. 


§§800,801          Ch.  34.     BETWEEN  EIPAEIAN  OWNERS.        (3d  ed.)  857 

And  yet  this  is  the  thing  which  some  California  judges  have 
called  a  "modification"  of  the  common  law  when  applied  in  Cali- 
fornia.29 It  is  to  this,  and  nothing  else,  that  such  California  ex- 
pressions referred  (improperly)  as  the  California  "modification" 
of  the  common  law. 

(3d  ed.) 

§  800.  Damage  in  Excess  of  Reasonable  Degree. — We  have,  in 
a  preceding  chapter,  quoted  from  authorities  holding  that  it  is 
all  a  question  of  degree,  what  act  of  one  proprietor  is  a  wrong  to 
another,  that  unreasonable  degree  being  a  question  of  fact  in  each 
case.  Such  excessive  damage  is  wrongful.  This  rule  is  laid  down 
by  Mr.  Justice  Shaw  in  a  recent  California  case:  "Riparian  owners 
have  correlative  rights  in  the  stream,  and  neither  is  a  trespasser 
against  the  other  until  he  diverts  more  than  his  share,  and  injures 
and  damages  the  other  thereby.  ....  The  rights  in  such  cases  are 
correlative,  and  if  an  injunction  can  issue  at  all  therein,  it  can  be 
only  when  one  owner  takes  more  than  his  due  proportion,  and  dam- 
age to  the  other  ensues  from  such  excessive  taking."80 

There  is  no  presumption  that  use  by  a  riparian  owner  is  excessive. 
It  depends  wholly  upon  the  evidence,31  and  complainant  has  the 
burden  of  proof.32 

(3d  ed.) 

§  801.    Where  the  Damage  is  During  Complainant's  Nonuse. — 

The  riparian  right  is  not  affected  by  nonuse,  nor  does  nonuse  by 
one  riparian  owner  enlarge  the  rights  of  other  riparian  owners 
against  him.  If  the  taking  or  use  complained  of  is  in  excess  of 
the  share  and  due  proportion  which  the  proprietor,  under  the 
principle  of  equality,  is  entitled  to  take  or  use,  then,  conversely, 
he  is  taking  the  share  belonging  to  other  proprietors,  and  the  dam- 
age to  them  may  be  excessive*  so  far  as  it  is  a  substantial  depriva- 
tion of  capacity  to  make  future  use  of  one's  land  though  no  actual 
damage  to  use  exist  at  present,  the  complaining  owner  not  himself 
using  the  water  at  present.  True,  the  complaining  owner  suffers 

29  Supra,  sec.  673,  and  sec.  749a.  man  v.  Le  Franc,   137   Cal.   217,   69 

30  Anaheim  W.   Co.  v.   Fuller,   150       Pac.  1011. 

Cal.   327,   88   Pac.   978.     Italics  ours.  31  Hudson  v.  Dailey,  156  Cal.  617, 

"Before  plaintiffs  could  have  the  aid  105  Pac.   748. 

of  the  court  to  enjoin  defendant's  use  32  Ibid.,  and  Miner  v.  Gilmour,  12 

they   would   have   to   show   that   such  Moore   P.    C.    155,    14   Eng.   Reprint, 

use  was  in  excess  of  their  rights  and  861. 

resulted  in  plaintiff's  injury."     Cole- 


858  (3ded.)     Pt.  IV.    THE  COMMON  LAW  OF  RIPARIAN  RIGHTS.     §801 

no  present  damage  to  use  in  such  case,  but  present  damage  to  use 
is  not  necessary.  It  is  enough  that  it  excessively  deprives  him  of 
the  natural  advantages  of  his  land,  excessively  diminishes  the 
value  of  the  riparian  estate  owing  to  the  loss  of  the*water  for  use 
on  his  land  in  the  future,  thereby  causing  a  permanent  depreciation 
of  the  value  of  his  land.  An  excessive  injury  to  capacity  of  use 
in  the  future,  which  would  ripen  into  a  prescriptive  right,  is 
equally  a  wrong.  For  example,  if  one  riparian  proprietor  con- 
sumes the  whole  stream,  though  on  his  own  riparian  land,  it  is 
wrongful  to  a  lower  proprietor,  though  the  lower  proprietor  makes 
no  use  of  the  water  himself;  for  in  a  few  years  he  would  finally 
lose  the  whole  stream  by  prescription.  Besides  which  the  upper 
owner  by  so  doing  immediately  deprives  the  lower  of  the  natural 
benefit  and  fertility  which  the  flow  of  the  stream  naturally  affords, 
which,  as  between  riparian  owners,  must  not  be  done  to  an  unrea- 
sonable degree. 

The  following  statement  is  as  admirable  an  exposition  of  the 
state  of  the  law  upon  this  matter  as  the  present  writer  can  recall : 
"Riparian  rights  are  naturally  rights  depending  on  the  owner- 
ship of  land  situated  on  the  bank  (ripa)  of  a  stream.  Except  for 
certain  natural  and  ordinary  purposes,  the  rights  of  one  proprietor 
are  not  in  general  superior  to  those  of  another.  The  rights  of 
all  for  purposes  of  irrigation  or  other  so-called  extraordinary  pur- 
poses are  based  on  the  principle  of  equality  and  are  correlative 
and  interdependent.  Each  may  take  only  such  an  amount  of 
water  as  is  reasonable  under  all  the  circumstances.  //  one  takes 
more  than  this  amount  under  a  claim  of  right,  although  no  damage 
might  for  the  time  being  be  caused  thereby  to  the  others,  because 
they  do  not  choose  to  exercise  their  full  rights,  yet  it  would  be 
an  injury  (injuria  sine  damno)  for  which  they  could  maintain  an 
action,  because  otherwise  the  wrongful  user  might  by  long  con- 
tinuance ripen  into  a  right.  When  once  it  has  thu*s  ripened  into 
a  right  it  becomes  a  superior  and  absolute  right,  no  longer  de- 
pending upon  the  location  of  the  land  upon  the  banks  of  the  stream, 
or  upon  the  corresponding  rights  of  others. ' '  ^ 

As  is  said  in  Lux  v.  Haggin :  ' '  There  can  be  little  doubt,  under 
the  authorities,  that  for  a  riparian  proprietor  entirely  to  consume 

33  Mr.  Chief  Justice  Freer  in  "If  the  use  which  one 'makes  of  his 
Wong  Leong  v.  Irwin,  10  Hawaiian  right  in  the  stream  is  not  a  reason- 
Hep.  270,  271.  Italics  ours.  The  able  use,  or  if  it  causes  a  substantial 
•upreme  court  of  Massachusetts  says:  and  actual  damage  to  the  proprietor 


5802  Ch.  34.     BETWEEN  RIPARIAN  OWNERS.       (3d  cd.)  859 

water  (except  ordinarily  for  domestic  uses,  etc.)  is  to  use  it  unrea- 
sonably";34 and  "an  entire  diversion  [consumption,  or  diversion 
without  returning  it]  of  a  watercourse  by  an  upper  riparian  pro- 
prietor for  irrigation  is  never  allowed";1  and  hence  it  is  that  in 
apportioning  the  water  to  allow  each  riparian  owner  a  reasonable 
use,  the  apportionment  must  be  based  upon  the  amount  of  irrigable 
land  owned  by  each,  and  not  merely  on  the  amount  actually  under 
irrigation.2  If  the  riparian  owner  complained  of  is  making  an 
excessive  use  during  the  complaining  owner's  nonuse,  the  latter  is 
entitled  to  either  nominal  damages,3  or. to  an  injunction. 

(3d  ed.) 

§  802.  Declaratory  Decree. — "While  prospective  damage  is  thus 
equally  important  with  present  damage  in  determining  what  acts 
complained  of  are  excessive,  there  is  a  tendency  to  protect  such 
future  use  (where  no  present  use  is  made,  and  hence  no  actual 
present  damage)  by  a  declaratory  decree,  protecting  the  complain- 
ing proprietor's  right  of  future  use,  but  refusing  a  prohibitive 
injunction  during  his  present  nonuse.  This  is  in  effect  quieting 
his  title  to  his  right  of  future  use,  but  denying  a  prohibitive  in- 
junction at  present  because  no  actual  damage  occurs  to  his  use 
at  present,  and  allowing  excessive  use  by. the  other  proprietors 
during  the  absence  of  damage  and  during  the  nonuse  of  the  com- 
plaining party. 

The  authorities  which  the  writer  has  to  this  effect  involved 
chiefly  nonriparian  use,  in  which  connection  they  are  given  here- 
after ; 4  but  if  the  decree  may  be  so  framed  in  favor  of  a  non- 
riparian  use,  it  a  fortiori  may  be  so  framed  in  favor  of  an  exces- 
sive riparian  use.  Perhaps  an  instance,  as  between  riparian  uses 

below  by  diminishing  the  value  of  his  1  Ibid.  Accord,  Stanford  v.  Felt, 
land,  though  at  the  same  time  he  has  71  Cal.  249,  16  Pac.  900;  Learned  v. 
no  mill  or  other  work  to  sustain  Tangerman,  65  Cal.  334,  4  Pac.  191; 
present  damage,  still,  if  the  party  Matthews  v.  Ferrea,  45  Cal.  51;  Bar- 
then  using  it  has  not  acquired  a  neich  v.  Mercy,  136  Cal.  206,  68  Pac. 
right  by  grant,  or  by  actual  appro-  589;  Harrison  v.  Harrison,  93  Cal. 
priation  and  enjoyment  for  twenty  676,  29  Pac.  325;  Sackrider  v.  Beers 
years,  it  is  an  encroachment  on  the  (1813),  10  Johns.  240;  Mason  v.  Hill, 
right  of  the  lower  proprietor  for  5  Barn.  &  Adol.  1,  110  Eng.  Reprint, 
which  an  action  will  lie."  Elliott  v.  692;  Gould  on  Waters,  3d  ed.,  p.  422, 
Fitchburg  Ry.,  10  Cush.  191,  57  Am.  note  4. 
Dec.  85.  2  Supra,  sec.  751. 

34  Lux  v.  Haggin,  69  Cal.  255,  at  3  Price  v.  High  Shoals  Co.,  132  Ga. 

406,  also  see  pp.  397  and  408,  10  Pac.  246,  64  S.  E.  87. 

674.  *  Infra,  sec.  831. 


860  (3ded.)     Pt.  IV.     THE  COMMON  LAW  OF  RIPARIAN  EIGHTS.     §803 

solely,  occurred  in  "Wiggins  v.  Muscupiabe  etc.  Co.5  It  was  there 
decreed  (by  Judge  Shaw,  trial  judge,  now  on  the  supreme  bench) 
that  when  one  proprietor  was  not  using  the  water  it  might  be  all 
consumed  by  the  other;  decreeing  to  the  former  a  right,  whenever 
he  desires,  to  begin  use  for  his  irrigable  land  at  the  intervals  de- 
creed by  the  court  as  reasonable,  but  allowing  complete  consump- 
tion by  the  other  even  at  those  intervals,  until  the  former  desires  to 
avail  himself  of  the  water.  The  decree  was  affirmed  on  appeal. 

(3d  ed.) 

§  803.     Conclusions. — The  following  conclusions  seem  proper 
between  riparian  owners  using  water  upon  their  riparian  lamds: 

(a)  A  riparian  proprietor's  right  is  not  one  to  the  corpus  of 
the  water,  nor  to  the  stream  as  a  corpus  in  its  natural  state,  nor 
to  en  unchanged  flow  of  the  water,  but  is  a  usufructuary  right 
in  the  natural  resource,  a  right  to  the  advantages  and  benefits  and 
uses  which  his  riparian  estate  derives  or  may  in  the  future  derive 
from  the  water,  and   the  value   which  the  presence  of  the  stream 
as  a  water  supply  contributes  to  the  riparian  estate,  as  qualified 
by  the  equal  right  of  all  other  riparian  proprietors  to  share  in  the 
same  benefits,  advantages  and  uses. 

(b)  To  constitute  a  wrong  by  one  riparian  owner  to  another 
there  need  not  be  any  present  damage  to  use,  nor  need  the  com- 
plaining proprietor  be  actually  using  the  water,  but  if  there  be  no 
such  present  damage  to  use,  there  must  be  shown  some  detriment 
to  the  use  of  the  land  from  impairment  of  these    benefits,   ad- 
vantages and  opportunities — in  a  word,  diminution  of  the  value 
of  the  estate  by  loss  of  future  use  of  the  water. 

(c)  And  further,  the  damage  to  actual  use  (if  such  there  be) 
or  to  the  value  of  the  estate  must,  to  become  wrongful,  be  shown, 
as  a  question  of  fact  in  each  case,  to  go  to  a  degree  such  as  to  be 
unreasonably  in  excess  of  that  necessarily  resulting  from  a  rea- 
sonable use  of  his  own  riparian  land  by  the  party  complained  of  in 
conjunction  with  a  like  reasonable  use  by  complainant,  and  thereby 
in  excess  of  the  equality  of  right  among  all. 

(d)  In  the  absence  of  such  excess,  any  diminution  of  flow,  or 
any  interference  or  damage  caused  in  the  use  of  his  riparian  land 
by  one  riparian  owner,  to  another  riparian  owner,  is  a  reasonable 
use,  and  hence  is  damnum  absque  injuria. 

5  113    Cal.    194,   54   Am.    St.    Kep.   337,  45  Pae.  160,  32  L.  R.  A.  667. 
§§  804-813.     (Blank  numbers.)     . 


§  814  Ch.  35.    AQAINST  NONRIPARIAN  OWNERS.     (3d  ed.)  861 


CHAPTER  35. 

PROTECTION  OF  RIPARIAN  RIGHT  AGAINST  NONRIPA- 
RIAN  OWNERS. 

§  814.     Difficulty  of  questions  involved. 

A.     IMPAIRMENT  OF  RIPARIAN  ESTATE  TO  ANY  DEGREE  WHAT- 
EVER BY  NONRIPARIAN  USE  IS  WRONGFUL. 
§  815.     Stated  generally,  nonriparian  owners  have  no  rights  in  streams. 
§  816.     Damage  to  present  use  immaterial. 
§  817.     Reasonableness-  in  its  correlative  sense  is  immaterial. 
§  818.     The  wrong  (where  no  present  damage  to  use)   consists  in  the  de- 
terioration to  any  degree  of  the  riparian  estate. 
§  819.     Nonriparian  diversion  usually  held  per  se  a  detriment. 

B.     SOME  OPPOSING  AUTHORITIES. 

§  820.  Departures  from  the  common  law. 

§  821.  Some  rulings   under  the  common  law. 

§  822.  Some  California  decisions. 

§  823.  Some  rulings  in  other  common-law  courts. 

§  824.  Same. 

§  825.  Storm  waters. 

g  826.  Same. 

C.     CAN    THESE    MINORITY    RULINGS    BE    RECONCILED     TO 

PRINCIPLE. 

§  827.     The  answer  must  be  made  under  the  common  law. 

§  828.     Possible   distinction  between   diminution  of  flow  and  depreciation 
of  estate. 

§  829,     Same. 

§  830.     Same. 

§  831.     Application  of  the  distinction  by  confining  the  decision  to  the  par- 
ties litigant. 

§  832.     Same. 

D.     OTHER  RELATED  MATTERS. 

§  833.     Declaratory   decree. 

§  834.     Nonriparian  use  by  both  parties. 

5  835.     Conclusions. 

§  836.     Exception  where  underground  water  is  involved. 

§§  837-843.     (Blank  numbers.) 

(3d  ed.) 

§  814.    Difficulty  of  the  Questions  Involved. — Upon  no  matter 
in  the  law  of  waters  has  there  been  more  litigation,  diversity  of 


862  (3ded.)     Pt.IV.    THE  COMMON  LAW  OF  RIPAKIAN  EIGHTS.     §815 

ruling  and  intrinsic  difficulty  than  in  the  matter  now  to  be  con- 
sidered ;  the  questions  arising  out  of  protection  of  the  riparian  right 
against  nonriparian  owners.  It  has  borne  most  of  the  fighting  in 
the  law  of  watercourses  under  the  name  of  the  doctrine  "injuria 
sine  damno."  The  common  law  of  riparian  rights  took  its  shape 
in  upholding  that  doctrine,  and  the  Colorado  law  of  prior  appro- 
priation in  denying  it  with  reference  to  riparian  owners.  The 
matter  presents  intrinsic  difficulties  under  the  law  of  appropria- 
tion as  well  a^3  in  the  common  law,  which  will  probably  prevent  it 
ever  being  absolutely  settled  to  the  entire  satisfaction  of  everj^one.1 
It  is  here  considered  as  a  question  of  common  law,  which  is  the 
California  law  for  streams  on  private  lands. 


A.     IMPAIRMENT  OF  RIPARIAN  ESTATE  TO  ANY  DEGREE  WHAT- 
EVER BY  NONRIPARIAN  USE   IS  WRONGFUL. 
(3d  ed.) 

§  815.  Stated  Generally,  Nonriparian  Owners  have  No  Rights 
in  Streams. — Stated  generally,  nonriparian  owners  have  no  rights 
in  streams  at  common  law.  Though  the  water  itself  is  not  the 
subject  of  ownership  by  anyone  (variously  expressed  as  being 
"publici  juris,"  "common  to  all  men,"  or  "belonging  to  the  pub- 
lic" or  "a  mineral  ferae  naturae"),2  yet  members  of  the  public 
owning  no  land  bordering  on  the  stream,  since  they  (aside  from 
arrangement  with  some  bank  owner)  have  no  access  to  the  natural 
resource  without  committing  a  trespass,  are  excluded.  This  exclu- 
sion in  settled  regions  (and  the  common  law  contemplates  no  others) 
throws  out,  from  the  means  of  accomplishing  a  taking  or  use,  the 
greater  part  of  the  public,  leaving  only  the  riparian  proprietors  as 
the  division  of  the  public  whom  conditions  in  settled  regions  do  not 
exclude.  Their  situation  gives  them,  not  any  greater  ownership 
in  the  substance  itself  than  others,  since  none  can  have  any  at 
all,  but  the  advantage  of  position  which  enables  them  alone  as 
members  of  the  public  to  avail  themselves  of  its  benefits  or  the 
usufruct  of  the  stream.* 

Another  way  of  putting  it  is  that  the  law  is  one  of  natural  re- 
sources. While  in  its  natural  situation  and  flow,  each  adjacent 

1  The  difficulties  which  arise  in  ap-  3  Supra,  sees.  54  et  seq.,  225,  692. 
plying   the   doctrine    of    injuria  sine  For    example,    Mr.    Justice     Shaw 
damno  between  appropriators  is  eon-  lately    said     in     the     supreme    court 
sidered   elsewhere.     Supra,   see.    642.  of   California;     "The     Martin     ranch 

2  S-upra,  see.  2  et  seq.  abutted  upon    the    stream    and    the 


§815  Ch.  35.     AGAINST  NONRIPARIAN  OWNERS.     (3d  ed.)  863 

landowner  in  turn  has  in  it,  at  common  law,  a  natural  right  of  real 
property.  It  is  there  devoted  by  nature  to  public  use  (or  "publici 
juris")  a  class  (in  settled  regions  which  the  common  law  contem- 
plates) of  the  public  defined  by  natural  situation.  Once  per- 
manently diverted  from  its  natural  situation  no  one  thereafter 
receiving  the  water  can  have  real  property  rights  in  the  natural 
resource,  nor  any  right  except  through  the  will  of  the  man  who 
has  taken  it  and  brought  it  to  the  new  locality.4  The  common  law, 
contemplating  a  settled  region,  will  not  permit  one  man  to  thus 
gather  up  in  himself  alone  the  whole  natural  resource  by  taking 
it  from  the  riparian  public ;  but  only  if  he  takes  it  from  that  class 
of  the  public  for  distribution  to  or  use  of  some  other  class  of  the 
public  (that  is,  condemnation  for  public  use  under  the  law  of  emi- 
nent domain),  being  then  subject  to  public  regulation  (under  the 
law  of  public  service). 

Another  way  of  putting  it  is  that  a  nonriparian  owner,  if  he 
acquired  any  right  by  his  taking,  would  have  an  exclusive  right, 
owing  no  duties  to  the  riparian  owners  on  the  stream,  in  violation 
of  the  common-law  system  of  correlated  rights.  "Our  law,"  said 
Justice  Story,  "awards  to  the  riparian  proprietors  the  right  to  the 
use  in  common,  as  one  incident  to  the  land;  and  whoever  seeks  to 
found  an  exclusive  use  must  establish  a  rightful  appropriation  in 
some  manner  known  and  admitted  by  the  law"  5  [that  is,  by  grant, 
condemnation -or  prescription].  The  system  of  correlative  rights 
is  inconsistent  with  the  idea  of  rights  in.  nonriparan  owners  who 
would  not  enter  into  the  correlation. 

Still  another  way  of  putting  it  is  that  the  California  law  of 
"appropriation"  of  water  is  confined  to  the  public  domain;  part 

riparian  rights  attaching  to  said  lands  657,   108    Pae.    866.     (Italics    ours.) 

by   reason    of    this    contiguity    were  In  a  still  later  case  the  same  authority 

paramount  to   the  rights   of   any   ap-  says:   "With     respect    to    the    Calkins 

propriator.     Being  the  owners  of  the  land,    all    doubts   as    to    the    superior 

land  bordering  its  banks,  they  could  rights   of   the   owners   thereof   to   the 

control    its  flow  and    prevent    others  use  of  the  waters  of  the  creek  thereon 

from  diverting    it    at    any  point  on  would  seem  to  be  settled  by  the  fact, 

their    lands.     There   was   no   evidence  appearing     throughout     the    evidence 

or  finding  that  the  plaintiffs  ever  ob-  and  not  disputed,  that  these  lands  are 

tained  by  purchase  or  grant  from  the  riparian  to  the  stream  and  are  situ- 

owners  of  the  Martin  ranch  any  right  ated  above  the  point  of  diversion  of 

whatever  either  to  maintain  the  ditcb  the     plaintiffs."     Perry     v.     Calkins 

over  that  ranch,  or  to  use  the  water  of  (Cal.),  113  Pac.  136. 

the   stream.     They    could   not    obtain  4  Supra,  sec.  56  et  seq. 

it  in  any  other  way    except    by    pre-  5  Tyler  v.  Wilkinson,  4  Mason,  397, 

scription    or     possibly     by    way    of  Fed.  Gas.  No.  14,312. 
estoppel."     Davis  v.  Martin,  157  Cal. 


864  (3ded.)     Pt.  IV.    THE  COMMON  LAW  OF  RIPARIAN  RIGHTS.     §816 

of  the  general  idea  from  the  early  settlement  of  the  State  that  the 
indiscriminate  license  exercised  by  the  pioneers  upon  public  land 
must  not  be  carried  against  private  landowners  also.  While,  in  the 
early  Colorado  cases,  "necessity"  was  accepted  as  denying  to 
private  landowners  in  this  new  region  the  absolute  dominion  over 
their  estates,6  the  California  court  has  always  opposed  such  ideas 
as  appeared,  if  extended  against  private  landowners,  to  be  de- 
structive of  property  rights,  and  feared  lest  the  peculiar  relations 
and  character  of  rights  on  the  public  domain  should  be  invoked 
as  applicable  to  private  property  and  "result  in  a  system  of  judicial 
condemnation  of  the  property  of  one  citizen  to  answer  the  as- 
sumed paramount  necessity  or  convenience  of  another  citizen."7 
It  was  the  aim  of  the  judges  that  the  law  of  private  land  should  be 
the  same  and  as  secure  in  California  as  in  any  other  part  of  the 
country,  as  the  legislature  in  its  first  session  had  declared  by  adopt- 
ing the  common  law  as  the  general  rule  of  decision.  And  it  is 
merely  one  application  of  this  attitude  that  the  California  courts 
have  always  confined  the  law  of  free  appropriation  to  waters  on 
the  public  domain,  just  as  they  confined  free  mining  to  the  metals 
there.8  Hence,  at  the  beginning,  the  law  of  appropriation,  under  the 
California  doctrine,  must  be  eliminated  from  the  following  discus- 
sion; for  that  system  has  no  application  in  California  to  streams 
flowing  over  or  by  private  lands.  The  question  is  one  wholly  within 
tho  common  law  of  riparian  rights  itself,  entirely  irrespective  of  the 
public  land  doctrine  of  free  appropriation. 

Any  statement  that  nonriparian  owners  have  rights  in  streams 
(except  by 'grant,  condemnation  or  prescription),  if  meant  as  a 
statement  of  a  general  principle,  is  not  in  harmony  with  the 
philosophy  of  the  common  law;  would  be  destructive  of  the  system 
and  its  aims;  and  whatever  discussion  we  may  enter  into  below, 
nothing  hereafter  said  is  intended  to  imply  that  the  common  law 
upholds  it. 

(3d  ed.) 

§  816.  Damage  to  Present  Use  Immaterial. — Entirely  imma- 
terial is  any  inquiry  into  actual  present  damage  suifered  or  not 
suffered  by  the  riparian  proprietor  to  his  present  use.  Since  the 

«  Supra,  see.  223.  *  We    have    elsewhere    traced     at 

T  Gregory  v.  Nelson,  41  Cal.  278,  S^SLS^^rf  'sect  221*6? 
at  290,  12  Morr.  Min.  Rep.  124.  6e?f  227  et  seq. 


§816  Ch.35.     AGAINST  NONEIPARIAN  OWNERS.     (3d  ed.)  865 

riparian  proprietor's  right  is  not  created  by  use,  but  is  a  right  to  the 
undisturbed  use  of  his  land,  whether  present  or  future,  arisjng  out 
of  the  natural  situation  of  his  property  with  access  to  the  stream, 
and  he  may  use  the  water  when  he  will,  the  absence  of  actual  dam- 
age to  use  at  the  time  he  complains  does  not  prevent  the  act  of  the 
nonriparian  owner  being  wrongful;  even,  in  fact,  when  the  com- 
plaining proprietor  is  not  himself  using,  nor  contemplating  to  use, 
the  water  at  all.  The  courts  will  act  at  law  by  giving  nominal 
damages,9  or  in  equity  by  injunction,  to  vindicate  his  right  of  future 
use  of  his  land,  which  right  is  part  and  parcel  of  the  land,  and  pre- 
vent its  loss  by  prescription,  and  which  future  use  is  (in  marked 
contrast  to  the  law  of  appropriation)  as  secure  to  him  as  any 
present  use.10 

This  matter  was  definitely  settled  in  California  in  Lux  v.  Hag- 
gin.11  It  had,  however,  always  been  the  California  law,  as,  for 
example,  the  holding  in  the  note,  in  a  case  several  years  before 
Lux  v.  Haggin.12  In  a  recent  California  case  it  is  said: 13  "Find- 
ing 15,  to  the  effect  that  a  large  part  of  each  of  the  tracts  de- 
scribed in  the  complaint  has  for  twenty-five  years  been  continuously 
cultivated  by  means  of  water  taken  from  the  stream  is,  it  is  con- 

»  Creighton  v.  Evans,  53  Cal.  55,  8  Watsonville  Co.,  150  Cal.  520,  89  Pae. 

Morr.  Min.  Rep.  123.  338;   Huffner  v.  Sawday   (1908),  153 

10  Creighton  v.  Evans,  53  Cal.  55 ;  Cal.  86,  94  Pac.  424 ;  Miller  v.  Madera 
8  Morr.  Min.  Rep.  123;  Anaheim  etc.  Co.,  155  Cal.  59,  99  Pac.  502,  22  L. 
Co.  v.  Semi-tropic  etc.  Co.,  64  Cal.  R.  A.  391;  Miller  v.  Bay  Cities  Co., 
185,  30  Pac.  623;  Moore  v.  Clear  157  Cal.  256,  107  Pac.  115;  San 
Lake  W.  Co.,  68  Cal.  146,  8  Pae.  816;  Joaquin  etc.  Co.  v.  Fresno  etc.  Co. 
Stanford  v.  Felt,  71  Cal.  249,  16  Pac.  (Cal.  1910),  112  Pac.  182.  See  cases 
900;  Hcilbron  v.  W.  Co.,  75  Cal.  117,  cited  in  various  preceding  chapters, 
17  Pac.  65;  Heilbron  v.  Fowler  etc.  such  as  sec.  117,  cases  following  the 
Co.,  75  Cal.  426,  7  Am.  St.  Rep.  183,  "California  doctrine";  sec.  221  et  seq., 
17  Pac.  535 ;  Heilbron  v.  Land  Co.,  80  regarding  appropriations  on  private 
Cal.  189,  22  Pac.  62;  Last  Chance  etc.  land;  sees.  498  et.  seq.,  502,  505,  re- 
Co,  v.  Heilbron,  86  Cal.  1,  26  Pac.  garding  changes,  on  private  land,  of 
523;  Conkling  v.  Pac.  Imp.  Co.,  87  appropriations  made  while  the  land 
Cal.  293,  25  Pac.  399;  Walker  v.  was  public. 

Emerson,   89   Cal.   456,   26   Pac.   968;  The  leading  American  case  is  that 

Spargur  v.  Heard,  90  Cal.  221,  27  Pac,  of  justice  Story  in  Webb  v.  Portland 

198;   Mott  v.  Ewing,  90  Cal.  231,  27  c«ment  Co.,    3    Sum.    189,  Fed.  Cas. 

Pac.  194;  Hargrave  v.  Cook,  108  Cal.  No.     17,322.     The     leading     English 

72,   41   Pac.    18,    30    L.   R.   A.   390;  case  js  Swindon  W.  W.  v.  Wilts  etc. 

Gould  v.  Eaton,  117  Cal.  539,  49  Pac.  o0>    7  H    of  L>  697 
577,  38  L.  R.  A.  181;  Bathgate  v.  Irv-        .  ''    .,„  1  ,       '         '  „       „_. 
ine,'  126    Cal.    136,  77   Am.   St.  Rep.  l  69  CaL  255'  10  Pac'  674' 

158,  58  Pac.  442;   Southern  Cal.  etc.  l2  Creighton  v.  Evans,  53  Cal.  56, 

Co.  v.  Wilshire,  144  Cal.  73,  77  Pac.  8  Morr.  Min.  Rep.  123. 
767;   Anaheim  W.   Co.  v.  Fuller,  150  ™  Huffner  v.  Sawday,  153  Cal.  86,« 

Cal.  327.  88  Pac.  978;   Duckworth  v.  94  Pac.  424  (Sloss,  J.).     Italics  ours. 
Water  Rights — 55 


866   (3ded.)     Pt.  IV.     THE  COMMON  LAW  OF  RIPARIAN  EIGHTS.     §817 

tended,  contrary  to  the  evidence.  The  finding  on  this  point  is, 
so  far  as  concerns  the  plaintiffs  who  have  riparian  rights,  not  ma- 
terial. Their  right  to  restrain  the  diversion,  by  others  than  riparian 
owners  •  of  water  which  would,  if  undisturbed,  flow  past  their  lands, 
does  not  rest  upon  the  extent  to  which  they  have  used  the  water,  nor 
upon  the  injury  which  might  be  done  to  their  present  use.  Even 
if  these  plaintiffs  had  never  made  any  use  of  the  water  flowing  past 
their  land,  they  had  the  right  to  have  it  continue  in  its  customary 
flow,  subject  to  such  diminution  as  might  result  from  reasonable  use 
by  other  riparian  proprietors.  This  is  a  right  of  property,  a  'part 
and  parcel'  of  the  land  itself,  and  plaintiffs  are  entitled  to  have 
restrained  any  act  which  would  infringe  upon  this  right." 

The  riparian  right  is  part  and  parcel  of  the  riparian  land,  not 
depending  upon  actual  use,  as  contrasted  with  an  appropriation 
which  depends  on  beneficial  use. 

Upon  this  rule,  that  actual  present  damage  to  a  riparian  owner  is 
not  necessary  to  make  a  nonriparian  owner's  diversion  wrongful, 
the  authorities  are  emphatic.14 

(3d  ed.) 

§  817.    Reasonableness  in  Its  Correlative  Sense  is  Immaterial, 

A  fortiori,  the  term  ' '  reasonable  use ' '  in  the  law  of  riparian  rights 
(denoting  an  equality  of  sharing  the  water's  benefits  for  the  equal 
correlative  use  of  all  land  having  natural  access  to  it  by  natural 
situation;  that  is,  an  equality  in  the  use  of  all  riparian  land)  has 
no  place  in  favor  of  nonriparian  lands  or  their  owners.  There  can. 
be  no  question  of  reasonableness  of  an  impairment  of  a  riparian 
estate,  when  that  impairment  is  not  for  the  benefit  of  another 
riparian  estate,  but  is  instead  for  exclusive  use  on  nonriparian  land 
or  by  nonriparian  owners.  Riparian  owners  are  entitled  to  a -rea- 
sonable use  of  their  own  lands,  though  to  an  interference  with  a 
neighbor,  because  they  are  equal  in  right  for  that  purpose;  non- 
riparian  lands  or  owners  can  never  claim  this  equality  with  them. 
"I  consider  that  the  rights  of  a  riparian  proprietor,  with  respect 

14  A  statute  was  introduced  in  the  be  unconstitutional.  Whatever  may 
California  legislature  in  1909  (but  be  urged  as  to  use  as  bounding  the 
failed  to  pass)  "limiting"  riparian  riparian  right,  it  is  obvious  that 
rights  against  nonriparian  owners  to  future  use  must  be  guarded  as  much 
s  the  water  reasonably  necessary  for  as  present  use.  The  California  water- 
riparian  irrigation,  watering  stock,  power  act  of  1911  expressly  declares 
domestic  uses  and  other  actual  bene-  that  it  shall  not  impair  rights  vested 
ficial  uses,  and  only  when  actually  in  at  the  time  use  is  sought  under  the 
use  therefor.  This  would  obviously  act.  Stats.  1911,  e.  406,  sec.  14. 


§817  Ch.  35.     AGAINST  NONEIPARIAN  OWNERS.     (3d  ed.)  867 

to  the  stream,  are  limited  only  by  those  of  persons  in  a  similar  or 
analogous  position  with  respect  to  the  stream  as  himself. ' ' 15 

There  are,  indeed,  decisions  admitting  nonriparian  use  into  such 
equality  with  riparian  uses,  and  inquiring  whether  the  nonriparian 
use  was  "reasonable,"  just  as  between  riparian  uses.  The  matter 
has  been  one  in  which  great  confusion  existed.  It  found  its  way 
into  some  California  cases.18  .Likewise  in  England,  it  was  in  one 
case  held  that  nonriparian  use  was  permissible  if  it  was  a  "reason- 
able use"  on  the  same  terms  as  use  on  the  riparian  lands  them- 
selves,17 but  this  was  emphatically  overruled  in  a  later  case  in  the 
House  of  Lords.18  It  has  likewise  been  held  to  be  the  law  of  New 
Hampshire  that  water  may  be  taken  for  sale  to  nonriparian  owners, 
if  only  a  ' '  reasonable  use, ' ' 19  and  of  Vermont,20  and  there  is  some- 
thing to  the  same  effect  in  a  Massachusetts  case.21  But,  upon  prin- 
ciple, they  cannot  stand  upon  this  ground,  and  in  the  law  of  Cali- 
fornia, after  .some  confusion,  it  is  now  definitely  settled  that  the 
question  of  "reasonable  use"  which  governs  between  riparian 
owners  or  uses  does  not  in  any  way  concern  a  nonriparian  owner 
or  nonriparian  use.  We  quote,  so  far  as  concerns  this  matter,  the 
recent  opinion  of  Mr.  Justice  Sloss  upon  rehearing  in  the  case  of 
Miller  &  Lux  v.  Madera  Canal  Co. :  ^ 

"The  argument  that  the  method  of  irrigation  adopted  by  plain- 
tiff, i.  e.,  that  of  having  the  annual  increased  flow  of  the  river 
spread  over  its  lands,  was  not  a  reasonable  use  of  the  water,  can 
have  no  weight  in  this  case.  The  doctrine  that  a  riparian  owner 
is  limited  to  a  reasonable  use  of  the  water  applies  only  as  between 
different  riparian  proprietors.  As  against  an  appropriator  who 
seeks  to  divert  water  to  nonriparian  lands,  the  riparian  owner  is 
entitled  to  restrain  any  diversion  which  will  deprive  Ijim  of  the 

15  Channel,  B.,  in  Nuttall  v.  Brace-       affirmed     in     Percival     v.     Williams 
well,  L.  R.  2  Ex.  1.  (1909),  82  Vt.  531,  74  Atl.  321. 

16  Infra,  sec.  826  et    seq.  „  21  ™ott     v      Fitchburg     Ry,     10 

,,  .,  Cush.  191,  57  Am.  Dec.  85. 

P  irfpv,  n  S*n7  «  ^i™  Nn7  22  <1909)>  155  Cal"  59>  "  Pa«-  502> 
Co,  10  Ch.  D.  ,07  See,  also  Nor-  22  ^  R  A  N  g  { 

5"TooV-o   ?      °W^fe  Miller  v-  Ba7  Cities  W.  Co,  157  Cal 

F.  -292,  9  Jur,  N.  S,  132.  256>    1Q7    p^c     n-      The    ^    faad 

18  McCartney    v.    Londonderry    Ry.  been  laid  down  in  Lux  v.  Haggin  at 
Co.,  [1904]  App.  Cas.  301.  suit  Of  the  same  plaintiff,  but  owing 

19  Gillis   v.   Chase,    67   N.   H.    161,  to  the  unsatisfying  results  of  the  rule 
68  Am.  St.  Rep.  64,  31  Atl.  18;  Jones  in  an  unsettled  region,  and  to  the  fact 
v.  Aqueduct,  62  N.  H.  488.  that  the  opinion  in  Lux  v.  Haggin  was 

20  Lawrie  v.  Silsby,  76  Vt.  240,  104  so  extremely  long  that  it  was  seldom 
Am.  St.  Rep.  927,  56  Atl.  1106;  Same  read,    the    point   had    again    come   in 
v.    Same.    82    Vt.    505,    74    Atl.    94.  doubt. 


868   (3d  ed.)     Pt.  IV.     THE  COMMON  LAW  OF  KIPAEIAN  RIGHTS.     §  818 

customary  flow  of  water  which  is  or  may  be  beneficial  to  his  land. 
He  is  not  limited  by  any  measure  of  reasonableness.  If  any  doubt 
ever  existed  on  this  point,  none  can  remain  since  the  recent  deci- 
sion of  this  court  in  Anaheim  Union  Water  Co.  v.  Fuller.23  The 
cases  relied  on  to  show  that  the  riparian  owner  is  entitled  to  only 
a  reasonable  use  of  the  water  were  all  cases  of  controversies  be- 
tween owners  of  different  parcels  of  land  riparian  to  the  same 
stream.  Virtually  the  same  point  is  presented  by  the  argument  that 
plaintiff  is  not  limiting  itself  to  the  most  economical  manner  of 
using  the  water.  This  is  not  an  objection  which  may  be  raised  by 
an  appropriator  who  seeks  to  divert  water  of  the  stream  to  non- 
riparian  lands  " 

Possibly  the  law  might  have  taken  a  different  course  in  the  West, 
where  a  stream  is  partly  on  public  and  partly  on  private  land,  so 
that  such  dual  position  of  the  stream  would  leave  a  riparian  right 
in  the  United  States,  upon  whose  great  extent  of  lands  any  use 
might  (had  the  law  taken  that  course)  have  been  regarded  as 
riparian,  and  the  question  would  then  have  been  legitimately  one  of 
"reasonableness"  between  riparian  proprietors  where  the  upper 
use  was  on  lands  of  the  United  States.  This  was  urged  in  the 
briefs  in  Lux  v.  Haggin,  but  received  no  consideration  from  the 
court.  It  was  again  urged  only  on  one  occasion,  and  then  the  court 
said:  "We  see  nothing  in  the  suggestion  that  defendant  is  pre- 
sumably the  licensee  of  the  United  States,  and  that  the  United 
States,  being  an  upper  riparian  proprietor,  could  take  a  reasonable 
quantity  of  water  as  against  the  lower  riparian  owner.  A  riparian 
proprietor  may  not  authorize,  as  against  a  lower  proprietor  a  com- 
pany to  take  water  from  the  stream  to  be  conducted  at  a  distance 
and  sold. ' '. 24  And  this  matter  must  now  be  regarded  as  settled  by 
the  opinion  of  Mr.  Justice  Sloss. 

(3d  ed.) 

§  818.  The  Wrong  (Where  No  Present  Damage  to  Use)  Con- 
sists in  the  Deterioration,  to  Any  Degree,  of  the  Riparian  Estate 
resulting  from  loss  of  future  use  of  the  water,  a  deterioration  which 
must  be  submitted  to  in  favor  of  other  riparian  use  to  a  reasonable 
degree,  but  to  no  degree  at  all  in  favor  of  nonriparian  use. 

23  150    Cal.    327,    88   Pac.    978,    11  24  Heilbron  v.   Fowler  etc.   Co.,  75 

L.  E.  A,.  N.  S.;  1062. '  Cal.  426,  7  Am.  St.  Hep.  183,  17  Pac. 

535. 


§  818  Cb.  35.     AGAINST  NONEIPABIAN  OWNEES.     (3d  ed.)  869 

This  idea  is  given  in  practically  all  of  the  important  cases  giving 
the  reason  for  the  rule  allowing  relief  against  nonriparian  owners 
or  use  without  present  damage. 

In  one  of  the  leading  American  cases  it  is  put  by  Chief  Justice 
Shaw  of  Massachusetts,  that  there  is  a  wrong,  "if  it  causes  a  sub- 
stantial and  actual  damage  to  the  proprietor  below  by  diminishing 
the  value  of  his  land,  though,  at  the  time,  he  has  no  mill  or  other 
work  to  sustain  present  damage. "  25  In  other  cases,  ' '  as  will  be 
detrimental  to  the  full  enjoyment  of  the  stream  by  the  com- 
plainants,"1 or  "the  plaintiff's  premises  would  sell  for  less";2 
or,  "They  had  no  property  in  the  water,  and  it  had  no  value  to  them 
independent  of  their  land  or  real  property,  and,  therefore,  its  value 
to  them  was  measured  by  the  injury  which  its  diversion  inflicted 
upon  their  real  property  to  which  the  water  was  appurtenant,"3 
or,  "It  is  true,  as  the  plaintiff  contends,  that  to  maintain  an  action 
he  is  not  obliged  to  show  in  his  use  of  the  land,  actual  present  dam- 
ages. It  is  enough  if  it  appears  that  an  injurious  effect  is  pro- 
duced upon  his  property  by  the  maintenance  of  the  dam,  such  as 
to  diminish  its  value,  if  the  defendant,  by  lapse  of  time,  should  ac- 
quire a  right  to  maintain  the  dam";4  or,  "The  plaintiff  is  not 
limited  in  her  user  of  the  water  as  she  has  been  accustomed  to  use 
it,  but  she  has  a  right  to  bring  an  action  for  the  impairment  of 
such  prospective  use  as  she  might  reasonably  make  of  the  water."-' 
Shaw,  C.  J.,  in  a  Massachusetts  case,6  ruled:  "And  although  the 
plaintiff  has  sustained  no  present  damage,  because  she  has  had 
no  mill  on  it,  or  otherwise  used  it  for  any  agricultural  or  manufac- 
turing purpose,  yet  such  diversion  would  prevent  beneficial  use  of  it 
hereafter,  and  thus  impair  the  value  of  the  estate."  Chancellor 
Kent  expressed  it  as  being  that  "he  will  lose  the  comfort  and  use  of 
the  stream  for  farming  and  domestic  purposes."1  In  other  cases 
it  is  put  that  the  wrong  lies  in  that  it  may  "defeat  any  subsequent 

25  Elliott     v.     Fitchburg     Ry.,     10  it    has    been    actually    held    that    the 

Gush.  191,  57  Am.  Dec.  85.  measure  of  damages  for  diversion  of 

1  Higgins    v.    Flemington    W.    Co.,  a     stream     for     nonriparian     use     on 
36  N.  J.  Eq.  538,  framing  decree  to  eminent    domain    is    the    depreciation 
enjoin    nonriparian    city   supply   only  in  value  of  the  riparian  land.     Infra, 
to  that  extent.  s«c.    865.     See,   also,    Cincinnati   Co. 

2  Bower   v.   Hill,    1    Bing.,    N.    S.,  v.  Gillispie,   130  Ky.  213.  113  S.  W. 
549,  2  Scott,  535.  89,  measure  of  damages  for  pollution. 

3  Matter    of    Thompson,    85    Hun,  5  Standen  v.  New  Rochelle  W.  Co., 
438,  32  N.  Y.  Supp.  897.  91  Hun,  275,  36  N.  Y.  Supp.  92. 

4  Stimson  v.  Inhabitants  of  Brook-  8  Newhall      v.      Iveson,      8      Cush. 
line   (1908),  197  Mass.  568,  125  Am.  (Mass.)   595,  54  Am.  Dec.  790. 

St    Rep.  382,  83  N.  E.  893,  16  L.  R.  7  Gardner  v.  Village  of  Newburgh 

A.,  N.  S.,  280,  14  Ann.  Cas.  907.     So       (1816),  2  Johns.  Cn.  164,  165. 


870  (3d  ed.)     Pt.  IV.    THE  COMMON  LAW  OF  EIPAEIAN  RIGHTS.     §  819 

use,"  8  or  "which  would  abridge  his  present  or  potential  use  of  his 
property."9  In  an  early  Scotch  case:10  "No  man  is  entitled  to 
divert  the  course  of  a  river  or  of  any  of  its  branches,  which  wrould 
be  depriving  others  of  their  right,  viz.,  the  use  of  the  water."  Or. 
in  more  general  terms:  "There  is  a  present  injury  to  the  right  of 
property,  if  it  is  impossible  to  predicate  that  it  may  not  produce 
serious  damage  in  future,  though  the  complaining  party  is  not  yet 
in  a  position  to  qualify  present  damage."  u 

It  should  be  noted  that  the  question  is  of  impairing  the  use  of  the 
riparian  land,  not  a  question  of  directly  interfering  with  the  use 
of  the  water  itself.  The  riparian  right  is  one  to  the  use  of  the 
land  by  means  of  the  water,  which  draws  the  use  of  water  to  it  as 
an  incident ;  the  use  of  water  is  not  the  principal  thing.12  Analogies 
may  be  found  in  other  branches  of  the  law.  "The  owner  of  land 
has  a  right  to  support  from  the  adjoining  soil;  not  a  right  to  have 
the  adjoining  soil  remain  in  its  natural  state  (which  right,  if  it 
existed,  would  be  infringed  as  soon  as  any  excavation  was  made 
in  it)  ;  but  a  right  to  have  the  benefit  of  support."1  An  excava- 
tion which  causes  no  present  caving,  but  which,  in  a  couple  of 
years,  after  rains,  would  then  cause  caving,  would  probably  be  ac- 
tionable from  the  start.  Likewise,  .in  jurisdictions  recognizing 
rights  in  light,  a  tree  which  cuts  off  no  light  now,  but  which  in  a 
couple  of  years  would  grow  so  as  to  cut  off  all  light,  would  also 
probably  be  actionable  when  planted  at  all.2  In  determining  upon 
an  injunction,  "regard  must  be  had  to  the  effect  of  the  nuisance 
upon  the  value  of  the  estate,  and  upon  the  prospect  of  dealing  with 
it  to  advantage."3 

(3d  ed.) 

§  819.  Nonriparian  Diversion  Usually  Held  Per  Se  a  Detri- 
ment.— Having  seen  that  damage  to  present  use  need  not  be  shown, 

8  Crocker  v.  Bragg,  10  Wend.   (N.  12  See  infra,  sees.  1118  et  seq.,  1140 

Y.)    260,   25    Am.    Dec.    555;    or,    an  et  seq.,  percolating  water, 

instruction      respecting      damage      is  l  Lord    Blackburn,    in    Dalton    v. 

wrong   if   it   charges   the  jury   to   re-  Angus,  6  App.  Cas.  808. 

gard  only  plaintiff's  land  "as  it  was,  2  See   Colls   v.   Home   and   Colonial 

and  not  with  reference  to  the  future."  Stores,    [1904]    App.    Cas.    179.     We 

New    York    Rubber    Co.    v.    Rothery,  refer  to  this  for  the  principle,  though 

132  N.  Y.  293,  28  Am.  St.  Rep.  575,  the  doctrine  of  ancient  lights  is  not 

30  N.  E.  841.  in   force   to   the   same  extent  in   this 

»  Clark  v.  Penn,  Ry.,    145  Pa.  438,  country  as  in  England. 

27  Am.  St.  Rep.  710,  22  Atl.  989.  3  Lord     Cranworth,     C.,     in     Atty. 

10  Magistrates  v.  Elphinstone  (1768),  Gen.  v.  Sheffield,  Gas  &  Elect.  Co.,  3 
3  Kames,  33-1.  De  Gex.,   M.  &  G.  304,  43   Eng.  Re- 

11  Lord  Blackburn  in  Orr  Ewing  v.       print,  119. 
Colquhoun,  2  App.  Cas.  853. 


§  810  Ch.  35.     AGAINST  NONRIPARIAN  OWNERS.     (3d  ed.)  871 

and  that  any  question  of  "reasonable"  nonriparian  use  cannot  exist, 
the  common-law  ruling  has  predominantly  been  that  there  is  no 
room  left  for  any  further  inquiry.  The  usual  ruling  has  been 
throughout  the  common  law,  in  California  as  well  as  in  the  East 
and  in  England,  that  any  nonriparian  diversion  whatever  is  per 
se  actionable  (unless  it  be  so  comparatively  insignificant  in  quan- 
tity as  to  be  within  the  rule,  "de  minimis  non  curat  lex") ;  and  so 
the  general  rule  of  pleading  is  that  a  plaintiff  riparian  owner,  as 
against  a  nonriparian  owner  or  nonriparian  use,  heed  allege,  in  this 
regard,  nothing  more  than  that  the  stream  flows  by  or  through  his 
land.4 

A  statement  representative  of  the  usual  ruling  is  given  by  Mr. 
Justice  Henshaw  in  a  California  case,  saying  that  a  riparian  pro- 
prietor's right  is  a  usufructuary  one  for  the  use  of  his  own  land, 
and  holding :  "  If  his  needs  do  not  prompt  him  to  make  any  use  of 
them,  he  still  has  the  right  to  have  them  flow  onto,  and  along,  and 
over  his  land  in  their  usual  way,  excepting  as  the  accustomed  flow 
may  be  changed  by  the  act  of  God,  or  as  the  amount  of  it  may 
be  decreased  by  the  reasonable  use  of  upper  owners  and  riparian 
proprietors."5  This  statement  represents  the  usual  holding  in 
California ;  especially  within  the  last  ten  years  it  has  been  the  almost 
universal  holding  there  as  elsewhere  (with  some  earlier  exceptions 
hereafter  noted).6  For  example,  it  has  been  said  in  recent  Cali- 
fornia cases  that  the  riparian  owner  has  "perhaps,  as  to  other  than 
riparian  owners,  the  right  to  prevent  any  substantial  diminution 
of  the  amount  of  water  which  would  naturally  flow  to  his  land";  7 
and  that  a  nonriparian  owner  is  per  se  a  trespasser  upon  the  rights 
of  a  riparian  owner  from  the  beginning.8  Again,  "being  a  riparian 
owner,  he  has  a  right  to  the  flow  of  the  entire  stream  as  against 
any  diminution  thereof  by  one  who  is  not  a  riparian  owner." 9  In 
Lux  v.  Haggin,1*  the  California  court  said:  "Undoubtedly,  as 

*  Infra,  sees.  883,  884.  7  Mr.  Justice   Shaw,  in  Duckworth 

5  Hargrave   v.    Cook,    108    Gal.    72,  v.  Watsonville  etc.  Co.,  150  Cal.  520, 
41  Pac.  18,  30  L.  R.  A.  390.  89  Pac.  338. 

6  Lists  of  California  cases  to  this  8  Mr.    Justice    Shaw,    in    Anaheim 
effect  are  given  elsewhere,  viz.,  supra,  W.  Co.  v.  Fuller,  150  Cal.  327,  88  Pac. 
sec.  117  (California  doctrine);  supra,  978. 

sees.  221,  229  (appropriation  confined  9  Gould  v.  Eaton,  117  Cal.  543,  49 

to     public     land) ;     supra,    sec.     816  Pac.  577,  38  L.  R.   A.   181.     This   is 

(present  damage  to  use)  ;  supra,  sec.  expressly  disapproved  in  San  Joaquin 

817      ("reasonableness    immaterial").  Co.  v.  Fresno  Flume  Co.  (Cal.  1910), 

See  especially  Creighton  v.  Evans,  53  112  Pac.   182. 

Cal.   56,   8   Morr.   Min.   Rep.   123,   de-  10  69  Cal.  255,  10  Pac.  674. 

cided   before   Lux   v.   Haggin,   and   a  In  Cal.   etc.  Co.   v.   Enterprise  etc. 

model  of  conciseness.  Co.,  127  Fed.  741,  at  742,  743,  it  is 


872   (3d  ed.)     Pt.  IV.     THE  COMMON  LAW  OF  RIPARIAN  RIGHTS.     §  820 

against  an  appropriation  by  a  mere  wrongdoer  [i.  e.,  a  nonriparian 
owner,  or  a  man  having  no  right  against  the  complaining  riparian 
owner  by  grant,  condemnation  or  prescription] ,  a  riparian  proprie- 
tor may  insist  upon  the  entire  and  complete  natural  flow  of  the 
stream. ' ' 

And  so  the  rule  is  generally  regarded  to  be  that  impairment  of 
estate  is  not  a  question  of  fact  nor  open  to  inquiry;  that  such  im- 
pairment follows  per  se  from  nonriparian  diversion,  as  a  matter 
of  law,  unless  so  slight  as  to  be  within  the  rule  "de  minimis  non 
curat  lex." 

B.     SOME  OPPOSING  AUTHORITIES. 
(3d  ed.) 

§  820.  Departures  from  the  Common  Law. — The  Colorado 
doctrine  is  wholly  opposed  to  the  foregoing,  having  rejected  the 
common  law  in  toto,  refusing  any  recognition  at  all  to  the  rights 
of  riparian  owners.11  Decisions  of  those  courts  are  of  no  bearing 
here  whatever. 

(3d  ed.) 

§  821.  Some  Rulings  Under  the  Common  Law. — But  the  Cali- 
fornia courts,  and  some  other  courts  following  its  doctrine  up- 
holding riparian  rights,  have,  as  an  interpretation  of  the  common 
law  itself,  rendered  some  decisions  opposed  to  the  foregoing  sec- 
tions. 

It  is  with  these  decisions  given  under  the  common  law  itself  that 
we  must  now  deal.  The  easiest  way  would  be  to  simply  note  them 
and  say  that  they  were  contrary  to  the  weight  of  common-law 
authority  in  and  out  of  California.  That  would  be  true.  But  it 
is  not  so  easy  to  say  that  they  are  equally  without  support  upon 
common-law  principle.  To  so  support  them  is,  indeed,  difficult, 
in  view  of  the  doctrine  of  the  foregoing  sections ;  but  one  is  not 
ready  to  say  that  it  is  impossible. 

said:   "A  riparian  proprietor  (and  this  above  him  to  prevent  such   diversion 

includes  a  lessee)  is  entitled  to  an  in-  from  ripening  into   a  right.     [Citing 

junction     to     restrain     the     unlawful  cases  included  in  sec.  816,  n.  10,  supra.] 

diversion  of  the  waters  of   a  stream  In  opposition  to  the  foregoing  cases, 

adjoining  his   land,   although   the  in-  defendants    rely,    among    others,    on 

jury   caused   by   the    diversion   is   in-  Modoc  etc.  Co.  v.  Booth,  102  Cal.  151, 

capable  of  ascertainment,  or  of  being  36  Pac.   431.     In  so   far  as  the  last 

estimated    in    damages.     Irrespective  named  case  conflicts,  if  it  does  con- 

of    the    question    of    injury,    or    its  flict,    with    those    previously    cited,    I 

estimation    in    damages,    another   line  must  decline  to  follow  it." 

of  cases  holds  that  a  riparian  proprie-  H  Supra,  sees.  118,  168  et  seq. 
tor  may  enjoin  a  wrongful  diversion 


§  822  Ch.  35.     AGAINST  NONRIPAEIAN  OWNERS.     (3d  ed.)   873 

Our  plan  will  be  to  state  them  first,  and  consider  the  possibility 
of  supporting  them  upon  principle  afterward. 

(3d  ed.) 

§  822.  Some  California  Decisions. — The  California  case  most 
frequently  cited  against  the  foregoing  is  Modoc  L.  &  L.  Co.  v. 
Booth  12  wherein  it  is  said:  "It  seems  clear,  however,  that  in  no  case 
should  a  riparian  owner  be  permitted  to  demand  as  of  right  the  in- 
terference of  a  court  of  equity  to  restrain  all  persons  who  are  not 
riparian  owners  from  diverting  any  water  from  the  stream  at  points 
above  him  simply  because  he  wishes  to  see  the  stream  flow  by  or 
through  his  land  undiminished  or  unobstructed.  In  other  words,  a 
riparian  owner  ought  not  to  be  permitted  to  invoke  the  power  of  a 
court  of  equity  to  restrain  the  diversion  of  water  above  him  by  a 
nonriparian  owner  when  the  amount  diverted  would  not  be  used  by 
him,  and  would  cause  no  loss  or  injury  to  him  or  his  land,  present 
or  prospective,  but  wrould  greatly  benefit  the  party  diverting  it." 
This  was  relied  on  in  Vernon  Irr.  Co.  v.  Los  Angeles.13  where  it  is 
said:  "There  is  no  evidence  or  finding  that  its  lands  are  suscep- 
tible of  cultivation  or  can  be  made  productive,  or  that  plaintiff  is 
or  can  be  injured  as  to  its  riparian  lands  though  deprived  of  all 
the  water  flowing  in  the  stream."  (Injunction  refused.)  And  so 
far  as  the  recent  cases  upon  percolating  water  present  analogies  to 
riparian  rights  on  watercourses,  they  strongly  support  the  Modoc 
case.  In  one  of  these  it  was  said  of  the  authorities  given  in  the 
opening  sections  of  this  chapter:  "They  lay  down  the  rule  that 
waters  of  a  stream  (or  percolating  waters),  cannot  be  taken  away 
from  the  lands  on  which  they  flow  or  from  lands  upon  which  they 
are  found,  for  use  elsewhere,  where  the  result  of  such  taking  would 
be  to  injuriously  affect  adjoining  property  owners.  The  principle 
which  enters  into  this  rule  is  protection  to  be  given  the  superior 
natural  rights  of  adjoining  property  owners  to  the  flow  and  use 
of  such  waters.  Where,  however,  there  can  be  no  injury  worked 
to  such  adjoining  owners  by  the  taking  and  use  elsewhere  of  such 
waters,  no  limitations  should  be  placed  upon  the  right  of  one  de- 
veloping them  as  to  their  use."1* 

Very  recently  the  supreme  court  of  California  has  again  (by  way 
of  dictum  only,  however)  reaffirmed  this  ground.  In  San  Joaquin 

12  102  Cal.  151,  36  Pac.  431.  584,  11  L.  B.  A.,  N.  S.,  752,  infra,  Sec. 

13  106  Cal    243,  39  Pac.  762.  1052.     See.  also,  Newport  v.  Temescal 

14  Cohen    v.    La    Canada    W.     Co.  W.  Co.,  149-  Cal.  531,  87  Pac.  372.  6 
(second  appeal),  151  Cal.  680,  91  Pac.  L.  R.  A.,  N.  S.,  1098,  infra,  sec.  1051; 


874  (3d  ed.)     Pt.  IV.     THE  COMMON  LAW  OF  EIPAKIAN  EIGHTS.     §  822 

Co.  v.  Fresno  Flume  Co.15  the  court,  speaking  of  nonriparian  use 
against  a  riparian  owner,  said  through  Mr.  Justice  Henshaw: 
"Even  if  at  common  law  or  under  the  civil  law  it  was  a  part  of 
the  usufructuary  right  of  the  riparian  owner  to  have  the  water  flow 
by  for  no  purpose  other  than  to  afford  him  pleasure  in  its  prospect, 
such  is  not  the  rule  of  decision  in  this  State.  The  lower  claimant 
must  show  damage  to  justify  a  court  of  equity  in  restraining  an 
upper  claimant  from  his  beneficial  use  of  the  water";  and  after 
quoting  at  length  from  the  Modoc  case,  defines  the  term  ' '  damage ' ' 
in  this  regard  as  meaning:  "Of  course  the  riparian  proprietor's 
rights  are  not  measured  by  the  amount  of  water  which  he  is  actu- 
ally using  at  the  time  of  his  action.  In  this  sense  the  actual  present 
damage  ceases  to  be  of  great  consequence,  but  its  place  is  taken 
by  the  necessary  and  consequential  damage  which  would  follow 
to  his  land  if  the  unauthorized  act  of  the  upper  appropriator  [non- 
riparian  user]  were  allowed  to  ripen  into  a  prescriptive  right. ' ' 16 

There  are  other  California  cases  going  much  further  than  the 
Modoc  case,  and  bringing  in  the  untenable  ground  of  "reasonable 
use"  which  governs  riparian  owners  between  themselves.  A  ripa- 
rian proprietor  has  been  held  to  have  a  right  against  an  appropriator 
for  nonriparian  use  only  to  the  extent  of  the  amount  necessary  for 
use  on  the  riparian  land.17  In  Senior  v.  Anderson,18  an  appropria- 
tion was  made  against  a  riparian  owner,  and  was  upheld  as  to  the 
surplus  over  the  quantity  that  could  be  beneficially  used  by  the  ripa- 
rian owner.19  Another  case  has  gone  even  further.  In  Riverside 

and    Mr.    Justice    Shaw    in    Katz    v.  Beatty,  C.  J.     See,  also,  the  dissent- 

Walkinshaw,  quoted  infra,  see.   1047,  ing  opinion   of   the   Chief   Justice   in 

and    Burr    v.    Maclay    E.    Co.,     154  Baxter   v.   Gilbert,    125   Cal.   580,   58 

Cal.    428,    98    Pac.    260.     In    Hudson  Pac.   129,  374. 

v.  Dailey,  156  Cal.  617,  105  Pac.  is  130  Cal.  290,  at  296,  62  Pac.  563. 
748,  the  court  said  it  saw  no  reason  19  The  court  said:  "It  is  con- 
why  the  law  of  riparian  rights  on  tended  by  respondents  that  Senior 
streams  should  differ  in  this  matter  acquired  no  rights  by  his  notice  and 
from  the  new  law  of  percolating  the  actual  diversion  of  the  water  in 
water.  See  generally  the  discussion  October,  1887;  that  riparian  rights 
under  the  law  of  percolating  water,  had  before  that  attached  to  the 
infra,  sec.  1154  et  seq.  lands  of  Mrs.  Hines,  she  having 

15  (Cal.  1910),  112  Pac.  182.  proved  up  and  claimed  her  final  cer- 

16  Since,      however,      the      opinion  tificate     of     purchase.     There    is    no 
closes  by  saying  that  both  parties  in  merit    in    this     contention.     Her    ri- 
the  case  at  bar  were  in  fact  riparian  parian   rights   could   only   entitle   her 
owners  making  riparian  use,  the  case  to    a    reasonable    use    of    the    water 
is  not  actual  authority  in  regard   to  upon  her  riparian  lands,  but  having 
nonriparian  use.  before    she    acquired    title    from    the 

17  Senior    v.     Anderson,     130     Cal.  United      States      appropriated     more 
290,  62  Pac.  563 ;   Riverside  etc.   Co.  water    than    was    required    for    bene- 
v.   Gage,   89   Cal.   420,   26   Pac.   889;  ficial  uses  upon  said  land,  she  could 


§  822 


Ch.  35.     AGAINST  NONEIPAEIAN  OWNERS.     (3d  ed.)   875 


W.  Co.  v.  Gage  20  it  was  held  that  a  riparian  owner  must,  in  a  suit 
with  the  appropriator,  actually  allege  in  his  pleading  the  facts  show- 
ing the  quantity  necessary  for  his  riparian  use,  beyond  which  the 
surplus  may  be  appropriated;  the  burden  of  disproving  a  surplus 
was  strongly  placed  upon  the  riparian  owner,21  and  the  case  has 
been  very  recently  reaffirmed.22.  There  are  still  other  California 
authorities  unconsciously  acting  upon  the  same  idea,23  such  as  those 


acquire  no  right  to  any  additional 
quantity  under  the  law  of  riparian 
rights."  (Under  the  more  recent 
decisions  she  would  have  been  entitled 
to  the  entire  flow,  irrespective  of  pos- 
sible use.) 

20  89  Cal.  410,  420,  26  Pac.  889. 

21  The    court    said:   "But    in    addi- 
tion to  the  appropriations  upon  which 
the  defendant   seems  mainly  to   have 
relied,    he    did    allege    in   his    answer 
that  he  was  the  owner  of  a  tract  of 
land      containing      about      twenty-six 
hundred     acres,     through     and     over 
which    the    Santa    Ana    River    flowed 
for  a  distance  of  about  three  miles, 
and    that    most    of    the    tract    was 
susceptible  of,  and  would  be  benefited 
by,  irrigation.     He  did  not,  however, 
allege    that    he    was    entitled    as    a 
riparian  owner  to  any  definite  quan- 
tity  of    water    for   the   irrigation    of 
his  riparian  lands,  nor  did  he  allege 
any    facts    showing,    or    tending    to 
show,  what  proportion  of  the  waters 
of    the    stream    he    could    reasonably 
exhaust  for  that  purpose.     Nor  is  it 
alleged   whether   his   land   was   above 
or     below     the    point     of     plaintiff's 
diversion.     In    short,    we    think    the 
answer  insufficient  to  raise  any  issue 
as  to  the  extent  of  defendant's  right 
as    a    mere    riparian    proprietor    to 
divert    and    exhaust    any    portion    of 
the   stream."     His   opponent  here  re- 
lied solely  on  rights  of  appropriation; 
and  the  more  recent  decisions  would 
have    made    the    extent    of    riparian , 
needs  immaterial,  excepting  that  two 
very    recent    cases    have    again    laid 
down   and   approved    the   rule   of   the 
Riverside     case.     Montecito      Co.     v. 
Santa   Barbara    (second  appeal),   151 
Cal.    377,    90    Pac.    935,    and    Wut- 
chumna    W.    Co.    v.    Pogue,    151    Cal. 
112,  90  Pac.   362.     See  likewise   San 
Luis  W.  Co.  v.  Estrada,  117  Cal.  182, 
48  Pac.   1075. 

22  Cases  just  cited. 


23  See  the  storm-water  cases,  infra. 
See,  also,  Char  nock  v.  Higuerra,  111 
Cal.  471,  at  477,  52  Am.  St.  R«p. 
195,  44  Pac.  171,  32  L.  R.  A.,  190; 
Coleman  v.  Le  Franc,  137  Cal.  214, 
69  Pac.  1011  (reasonableness  adopted 
as  test  between  a  riparian  and  a  non- 
riparian  owner).  Professor  Pomeroy 
said:  "But  the  larger  and  permanent 
rivers  of  the  State,  the  San  'Joaquin, 
and  its  affluents  like  the  Merced, 
the  Tuolumne,  the  Calaveras,  and 
others  coming  down  from  the 
heights  of  the  Sierras,  and  the 
Sacramento  with  its  similar  branches, 
the  Bear,  the  Yuba,  the  Feather,  and 
others,  when  not  polluted  by  hy- 
draulic mining,  if  reasonably  and 
properly  controlled  and  utilized,  can 
certainly  furnish  an  adequate  and 
constant  supply  of  water,  for  the 
purpose  of  irrigation,  to  vast  com- 
munities of  landowners  in  addition 
to  the  riparian  proprietors  upon  their 

very     banks Communities-    of 

owners  at  a  distance  from  the  larger 
streams  should  be  entitled  to  reach 
and  appropriate  this  excess  of  their 
waters  after  the  wants  of  the  riparian 
proprietors  are  reasonably  satisfied, 
without  any  condemnation  or  pay- 
ment of  compensation,  since  such  a 
use  would  not  substantially  affect  any 
rights  held  by  the  riparian  proprie- 
tors on  the  streams After  the 

reasonable  needs  of  the  riparian 
proprietors  have  been  fairly  and  rea- 
sonably ascertained  and  satisfied,  all 
the  excess  of  the  waters  of  any  such 
stream  belongs  of  right,  for  the  pur- 
poses of  irrigation,  to  those  communi- 
ties of  nonriparian  landowners  who 
are  so  situated,  geographically  and 
topographically,  that  they  can  in  the 
best  manner  appropriate  and  utilize 
such  surplus  of  the  waters."  Pomeroy 
on  Riparian  Rights,  sees.  155,  156, 
158,  160. 


876   (3ded.)     Pt.IV.     THE  COMMON  LAW  OF  RIPARIAN  RIGHTS.     §822 


inquiring  into  the  quantity  of  riparian  land  belonging  to  the  ripa- 
rian owner ; 24  and  such  as  those  prohibiting  waste  by  a  riparian 
owner  against  nonriparian  use  below,-5  especially  a  recent  case 
where  the  court  forced  the  riparian  owner  to  let  the  surplus  go  by 
in  order  that  it  may  be  taken  to  nonriparian  lands  below,  and 
affirmatively  helped  the  nonriparian  diversion  by  quieting  title  to 
it  against  the  upper  riparian  use.1 


24  In    Boehmer    v.    Big    Rock    Irr. 
Dist.,   117   Cal.   19,   48   Pac.   908,   de- 
fendant appears  to  have  been  a  non- 
riparian      owner,      diverting      water 
from     an     existing     riparian     owner. 
Such     diversion     was     allowed     after 
affirming    the    judgment    w.hich    "en- 
titles  the   plaintiff  to   the   reasonable 
and    necessary    use    of    water    there- 
from for  domestic  and  irrigation  pur- 
poses," and  "limits  plaintiff's  riparian 
rights      to      those      quarter      sections 
through  which  the  stream  runs"  (page 
24).     Yet  unless  the  needs  of  those 
quarter    sections    were    material,    he 
would    have   had   an   unlimited   right 
to    the    entire    flow,    irrespective    of 
what     other     lands     he     owned.     See 
supra,  sec.  771,  "riparian  land." 

25  In  Barneich  v.  Mercy,   136  Cal. 
205,  68  Pac.   589,  nonriparian  owner 
enjoined    waste    by    riparian    owner, 
without      inquiring      whether      nonri- 
parian    appropriation    was     acquired 
while  defendant's  land  was  public. 

In  Mentone  Irr.  Co.  v.  Redlands 
Co.  (1909),  155  Cal.  323,  100  Pac. 
1082,  22  L.  R.  A.,  N.  S.,  382,  17 
Ann.  Cas.  1222,  the  court  says:  "We 
have  little  doubt  that  plaintiff  .  [a 
lower  nonriparian  user]  would  be  en- 
titled to  some  relief  [against  a 
wasting  upper  riparian  owner]." 

i  In  this  case  (Arroyo  D.  Co.  v. 
Baldwin,  155  Cal.  280,  100  Pac.  874), 
a  corporation  making  nonriparian 
use  of  part  of  its  water  was  granted 
an  injunction  against  an  upper 
riparian  owner  who  took  three  hun- 
dred inches  more  than  the  upper 
riparian  needs  required.  The  court 
limited  the  upper  riparian  owner 
(Baldwin)  to  two  hundred  and 
eighty-nine  inches  on  the  ground  that 
"It  is  also  found  that  only  a  part 
of  Baldwin's  land  is  susceptible  of 
irrigation;  that  some  of  it  is  damp 
and  moist  land  requiring  no  irriga- 
tiofl;  that  some  needs  but  slight  irri- 


gation ;  that  wells  upon  Baldwin's  land 
supply  water  in  abundance  for  do- 
mestic use;  and  that  two  hundred 
and  eighty-nine  inches  of  water 
under  four-inch  pressure  is  essential 
for  irrigation  for  the  successful  culti- 
vation and  production  of  crops  on  all 
the  said  land  of  the  appellant  which 
is  susceptible  of  and  requires  irri- 
gation;" and  said:  "It  is  immaterial 
to  this  discussion  whether  or  not 
some  of  the  water  taken  from  the 
stream  by  respondent  [plaintiff]  is 
carried  beyond  the  watershed.  Ap- 
pellant [defendant  riparian  owner] 
is  limited  in  his  right  to  the  use  of 
water  upon  his  riparian  land  within 
the  watershed  of  the  stream.  He 
may  take  his  proper  proportion  of 
the  water.  The  surplus  must  be  re- 
turned to  the  channel  of  the  river 
at  the  lower  boundary  line  of  his 
land.  After  he  has  thus  used  his 
legitimate  part  of  the  water  he  can- 
not object  to  its  diversion  to  any 
beneficial  use  by  the  lower  riparian 
owners  and  appropriators  or  their 
successors  in  interest." 

This  case  says  that  a  riparian 
right  is  limited  to  riparian  needs  in 
favor  of  nonriparian  surplus  use  be- 
low. After  the  water  has  gone  by 
the  riparian  owner,  he  has  no  con- 
cern in  it,  it  is  true;  but  this  case 
made  him  let  it  go  by;  enjoined 
him  from  acting  upon  it  before  it 
^got  by  him;  gave  affirmative  aid  and 
,  help  (injunction  and  quieting  title) 
to  the  nonriparian  use  which  re- 
stricted a  riparian  owner.  Under  it 
a  nonriparian  use  at  a  stream's 
mouth  can  prevail  against  all  ri- 
parian proprietors  above,  as  to  the 
surplus  over  their  needs,  in  irrecon- 
cilable conflict  with  Miller  v.  Madera 
Co.,  considered  supra,  sec.  817.  How- 
ever, the  case  of  People  ex  rel.  Ricks 
etc.  Co.  v.  Elk  River  Co.,  107  Cal.,  at 
226,  48  Am.  St.  Rep.  121,  40  Pac.  486, 


§  823  Ch.  35.     AGAINST  NONRIPARIAN  OWNERS.     (3d  ed.)  877 

(3d  ed.) 

§  823.  Some  Rulings  in  Other  Common-Law  Courts. — The  gen- 
eral attitude  of  the  Western  Federal  courts  is  to  allow  some 
nonriparian  diversion.  In  cases  of  water  to  which  a  military 
or  Indian  reservation  is  riparian,  surplus  nonriparian  diversions  by 
private  parties  have  been,  to  some  extent,  allowed.  To  any  extent 
which  would  impair  use  of  the  water  on  the  reservation  in  the  future 
to  its  full  possibilities  (whether  now  fully  or  at  all  used  there  or 
not)  such  nonriparian  diversion  is  absolutely  enjoined;  but  they 
allow  nonrip'arian  diversions  of  any  surplus  over  the  quantity  which 
could,  at  any  time  even  in  the  future,  be  put  to  use  on  the  reserva- 
tion.2 Even  between  private  parties  solely,  the  Federal  courts  have, 
in  effect,  upheld  nonriparian  diversions  of 'sue1*  surplus ;  and,  where 
large  communities  were  involved,  have  apportioned  the  water  with 
little  regard  to  whether  some  were  nonriparian  owners  (appropri- 
ators)  and  some  riparian  owners.3  And  there  are  other  decisions 
of  the  Western  Federal  courts  allowing  some  nonriparian  diversion 
against  riparian  owners  under  the  common  law.4  A  decision  of  the 
supreme  court  of  the  United  States  may,  perhaps,  be  cited,  holding, 
in  a  New  Mexico  case,  that  a  statute  allowing  appropriations  of 
surplus  water  cannot  result  in  infringement  of  riparian  rights  even 
if  such  rights  exist  in  New  Mexico,  because  the  statute  expressly 
limits  the  appropriation  to  " surplus"  water.5 

Likewise  in  State  courts,  besides  the  California  cases  already 
noted,  there  are  minority  decisions  to  the  .effect  that  such  a  surplus 
may  exist.  In  South  Dakota  a  nonriparian  diversion  has  been  up- 
held against  a  riparian  owner,  after  fixing  by  degree  the  amount 
of  one  hundred  inches  as  the  amount  necessary  for  the  riparian 
land.6  In  Washington  a  nonriparian  owner  has  been  allowed  to  en- 
join acts  of  an  existing  riparian  owner,7  and  it  is  provided  in  Wash- 
ington and  Oregon  by  statute  that  nonriparian  diversions  may  be 

is  directly  contra  as  to  pollution,  hold-  *>  Gutierres  v.  Albuquerque  etc.  Co., 

ing  that   the   nonriparian   user  below  188  U.  S.  545,  23  Sup.  Ct.  Rep.  338, 

stream  cannot  restrain  pollution  by  an  47  L.  Ed.  588,  quoted  supra,  sec.  181. 

upper  riparian  owner.     And  so  is  the  8  Lone   Tree  D.   Co.  v.  Cyclone  D. 

general   English    mle   contra,   as   dis-  Co.,  15  S.  D.  519,  21  N.  W.  355;  Lone 

cussed  below  under  the  topic  of  "grants  Tree  D.  Co.  v.  Cyclone  D.  Co.  (S.  D.), 

for  nonriparian  use,"  sec.  847.  128  N.  W.  596.     See,  also,  Redwater 

2  Supra,  sec.  207.  etc.  Co.  v.  Reed   (S.  D.),   128  N.  W. 

3  Supra,    sec.    310    et    seq. ;    Union  702;     Same    v.    Jones     (S.    D.),    130 
Min.   Co.   v.   Dangberg,   81    Fed.    73;  N.  W.  85. 

Anderson  v.  Bassman,   140  Fed.   14.  ?  Northport  Brewing  Co.  v.  Perrat, 

4  Cruse  v.  McCauley,  96  Fed.  369 ;       22  Wash.  243,  60  Pac.  403. 
Ison  v.  Nelson  Mng.  Co.,  47  Fed.  179. 


878   (3d  ed.)    Ft.  IV.    THE  COMMON  LAW  OF  RIPARIAN  EIGHTS.    §  824 

made  of  surplus  over  riparian  needs.8  As  elsewhere  cited,  it  was 
once  so  ruled  in  England  (since  overruled)  and  New  England.9 
Accordingly,  there  are  authorities  to  the  general  effect  that,  since 
there  must  be  depreciation  shown  to  the  value  of  the  riparian  estate, 
what  constitutes  such  depreciation  is  a  general  question  of  fact,  to 
be  left  to  a  jury  without  further  guide.10 

Some  qualification  upon  the  right  of  a  riparian  owner  against  a 
nonriparian  owner,  even  at  common  law,  has  been  said  to  be  "the 
American  rule. ' '  u 


(3d  ed.) 

§  824.     Same. — An  argument  frequently  made  is  a  reductio  ad 

absurdum  first  used  by  a'  great  American  judge,  quoted  in  a  pre- 
ceding section  in  dealing  with  the  question  between  riparian  owners, 
but  which  he  there  actually  applied  to  a  case  where  defendant,  a 
nonriparian  owner,  used  water  upon  nonriparian  land.12  It  was 
also  used  in  an  English  case.13  And  so,  also,  in  Modoc  L.  &  L.  Co. 


8  Washington,   Pierce's   Code,   sec. 
5821;  Oregon,  Stats.  1909,  c.  216,  sec. 
70.     In  Oregon  the  decisions  were  in 
hopeless    confusion    until    Hough    v. 
Porter,   51   Or.   318,  95   Pac.   732,   98 
Pac.  1083,  102  Pac.  728,  cut  the  knot 
and  avowedly  acted  outside  the  com- 
mon law.     Supra,  sec,  129. 

See  Madigan  v.  Kougarok  M.  Co., 
3  Alaska,  63,  a  case  of  minor  author- 
ity, since  it  has  been  ruled  that 
riparian  rights  do  not  exist  in  Alaska. 
Su'pra,  sec.  118. 

9  Supra,  sec.  817. 

W  In  a  case  holding  that  a  railway 
company  may  dam  a  stream  and  use 
water  for  locomotives  (i.  e.,  nonri- 
parian use)  if  lower  proprietors  are 
not  injured,  it  was  said:  "If  the  use 
by  the  railroad  causes  no  material  in- 
jury to  the  owner  [below],  then  no 
recovery  can  be  had,  and  this  is  a  ques- 
tion of  fact  for  the  jury  to  deter- 
mine." Anderson  v.  Cincinnati  So. 
By.,  86  Ky.  44,  9  Am.  St.  Rep.  263, 
5  S.  W.  49.  To  the  same  effect  is 
the  judgment  of  Chief  Justice  Shaw 
in  the  Massachusetts  case  of  Elliott 
v.  Fitchburg  Ry.,  10  Gush.  (Mass.), 
193,  57  Am.  Dec.  85. 

11  Note  by  Mr.  Justice  Holmes  to 
3  Kent's  Commentaries,  14th  ed.,  p. 
689;  24  Am.  &  Eng.  Ency.  of  Law, 
982 ;  Doremus  v.  City  of  Paterson, 
63  N.  J.  Eq.  605,  52  Atl.  1107  (but 


see  S.  C.,  65  N.  J.  Eq.  711,  55  Atl. 
304);  Gillis  v.  Chase,  67  N.  H.  161, 
68  Am.  St.  Rep.  645,  31  Atl.  18; 
Lawrie  v.  Silsby,  76  Vt.  240,  104 
Am.  St.  Rep.  927,  56  Atl.  1106;  Same 
v.  Same,  82  Vt.  505,  74  Atl.  94 
(affirmed  in  Percival  v.  Williams,  -82 
Vt.  531,  74  Atl.  321). 

12  Chief  Justice  Shaw  in  Elliott  v. 
Fitchburg    etc.     Ry.     Co.,     10     Gush. 
(Mass.)   191,  57  Am.  Dec.  85,  quoted 
supra,  sec.  798. 

13  Kensit     v.     Great     Eastern     Ry. 
(1884),  27  Ch.  D.   122,  a  case  upon 
which  doubts  were  later  cast  in  Mc- 
Cartney  v.   Londonderry  Ry.,    [1904] 
App.  Cas.  301,  but  which  has  not  been 
expressly  disapproved  or  overruled  in 
England,    and    on    the    contrary    has 
been  quoted  with  approval  in  America. 
The  nonriparian  owner  in  the  Kensit 
case  diverted  water  for  use  in  cooling 
certain  machinery  and  returned  it  un- 
diminished     and     unpolluted     in     its 
original  condition  back  to  the  stream. 
The    plaintiff    lower    riparian    owner 
claimed   this   to   be   a  wrong   per  se, 
but  the  decision  was  against  him,  and 
an  injunction  refused.     Bagally,  L.  J., 
said,     "It    is    impossible    that    there 
should    be    any    injury";    and    Lord 
Lindley    said:   "There    is    no    injury 
to  the  plaintiffs,  either  actual  or  pos- 
sible";   and   he   further   said:   "It   is 
said  that  a  man  wlw  is  not  a  riparian 


§•824  Ch.  35.     AGAINST  NONRIPARIAN  OWNERS.     (3d  ed.)  879 

v.  Booth,14  the  same  argument  is  used,  saying:  "If  this  be  not  so,  it 
would  follow,  for  example,  that  an  owner  of  land  bordering 
on  the  Sacramento  River  in  Yolo  County  could  demand  an  injunc- 
tion restraining  the  diversion  of  any  water  from  that  river  for  use 
in  irrigating  nonriparian  lands  in  Glenn  or  Colusa  County.  And 
yet  no  one,  probably,  would  expect  such  an  injunction,  if  asked  for, 
to  be  granted,  or,  if  granted,  to  be  sustained."  And  in  another 
case:  "A  riparian  owner  on  the  Mississippi  River  might  seek  to 
enjoin  the  diversion  of  the  waters  of  Sage  Creek  in  Wyoming  be- 
cause they  eventually  reach  the  Missouri  River,  and  finally  through 
that  river  flow  into  the  Mississippi.  This  argument  might  be  classed 
under  the  head  of  reducMo  ad  absurdum,  which  sometimes  is  very 
effective  as  illustrating  results  which  may  flow  from  doing  a  given 
thing."15  It  must  be  noted,  however,  that  regarding  this  expres- 
sion in  the  Modoc  case,  Mr.  Justice  McFarland  in  the  Vernon  case,16 
concurring  specially,  said:  "Illustrations  drawn  from  supposed 
riparian  rights  in  such  rivers  [the  Mississippi  or  Sacramento]  are 
scarcely  more  pertinent  than  would  be  illustrations  from  supposed 
riparian  rights  on  the  Gulf  Stream,"  which  is  quoted  with  approval 
in  the  Federal  court,17  and  had  the  approval  of  recent  decisions  of 
the  California  supreme  court,  which  recently  said  that  the  Modoc 
case  must  be  disregarded  unless  it  can  stand  on  the  storm-water 

proprietor  has  no  right  to  take  water  it  would  produce  any  damage  to  the 

from  a  stream  at  all,  and  if  I,  a  ri-  opposite    or    lower    riparian    owners, 

parian  proprietor,  find  anybody  who  is  then  that  would  give  a  right  of  action, 

not  a  riparian  proprietor  taking  water  although  no  actual  injury  was  shown 

from  the  stream,  although  I  am  not  to  have  resulted  from  it."     But  deny- 

damnified,   I  can  maintain  an  action  ing  injunction   because   the   diversion 

for    an    injunction.     Now,    this    is    a  in   the   case  by  a  nonriparian   owner 

very    startling    proposition,    and    one  could  not  in  any  way  produce  any  in- 

would  like  to  see  some  authority  for  jury  or  loss  to  plaintiffs,   present  or 

it.     It    goes    to    an    extent    which    is  future,    and    no    prescription    would 

bordering  on  the  absurd.     According  arise.     Cotton,    L.    J.,    further    said: 

to  that,  if  I  am  a  riparian  proprie-  "The  plaintiffs,  therefore,  in  my  opin-- 

tor  near  the  mouth  of  the  Mississippi,  ion,  have  not  suggested  anything  upon 

and   somebody   a    thousand   miles    up  which  we  could  say  that  from  the  act 

diverts  the  water,  although  not  to  my  which    has    been    done    without    legal 

detriment,  I  can  sustain  an  injunction.  authority,  although  not  producing  any 

That    is    ridiculous The    argu-  loss  to  them  now,  loss  may  hereafter 

ment  cannot  be  maintained  unless  we  result."     (Italics   ours.) 

say  that  a  riparian  proprietor  cannot  14  102  Cal.  151.  36  Pac.  431. 

allow  anybody  to  take  any  water  out  15  Morris    v.    Beam     (Mont.),    146 

of  a   stream  whether  anybody  is   in-  Fed.  425.     See,  also,  Kansas  v.  Colo- 

jured  or  not.     It  seems  to  me  it  would  rado,  206  U.  S.  46,  27  Sup.  Ct.  Rep. 

be   monstrous   to   decide  anything   of  655,  51  L.  Ed.  956. 

the    sort."     The    injunction    was    re-  16  106  Cal.  237,  39  Pac.  762,  supra. 

fused,     Cotton,     L.     J.,     saying:   "If  17  Cal.    etc.    Co.   v.    Enterprise   etc. 

there  was  a  reasonable  prospect  that  Co.,  127  Fed.  241. 


880   (3d  ed.)    Pt.  IV.    THE  COMMON  LAW  OF  EIPAEIAN  EIGHTS.    §  825' 

principle  below  considered ; 18  but  more  recently  still  reaffirmed  the 
Modoc  case  most  emphatically,  and  quoted  the  foregoing  passages 
from  it  as  correct  doctrine.19 

(3d  ed.) 

§  825.  Storm  Waters. — In  a  large  part  of  California  all  the 
late  summer  flow  is  now  in  full  use,  and  is  called  the  "normal  flow." 
Further  irrigation  must  come  from  storing  the  earlier  flow  from 
the  winter  and  spring  floods,  to  hold  it  for  use  later  in  the  season. 
Consequently  some  California  cases  have,  in  this  connection,  dis- 
tinguished storm  or  flood  waters  in  a  stream  from  the  natural  flow 
thereof.  Granting,  if  necessary,  that  the  riparian  proprietor  is  en- 
titled to  the  whole  natural  flow,  even  if  it  is  shown  that  it 
cannot  all  contribute  value  to  his  estate  or  to  its  potential  use,  yet 
the  cases  now  in  view  hold  that  storm  waters  even  after  reaching  the 
channel  are  not  part  of  the  natural  flow,  but  a  fortuitous  foreign 
body  of  water  that  has  made  its  way  there,  retaining  their  character 
as  "surface  water"  even  after  reaching  the  channel.1"6  Conse- 
quently, while  asserting  that  impossibility  of  damage  is  immaterial 
where  the  natural  flow  is  alone  concerned,  they  refuse  to  recognize 
any  right  in  the  riparian  proprietor  to  this  nonnatural  flow  in  the 
absence  of  possible  damage  to  his  land  from  loss  of  it.7  This  is  in 

18  Anaheim   W.   Co.   v.   Fuller,   150  owners,  but  with  some  indication  of 
Cal.    327,    88    Pac.    978;    Miller     v.  a   desire   to   apply  the   same   to   non- 
Madera  Co.,  155  Cal.  59,  99  Pac.  502,  riparian  owners).     The  case  of  Edgar 
22  L.  E.  A.,  N.  S.,  391.  v.   Stevenson  is  usually  cited  to   this 

19  San  Joaquin  Co.  v.  Fresno  Flume  effect,    though    it   was    decided    with- ' 
Co.   (Cal.  1910),  112  Pae.  182.  out  attention  to  the  fact  that  plain- 

1-6  Supra,  sec.  347.  tiff  was  a  riparian  owner,  and  its 
7  Edgar  v.  Stevenson,  70  Cal.  286,  citations  are  cases  where  both  parties 
11  Pac.  704;  Heilbron  v.  L.  &  W.  claimed  as  appropriators  only.  See, 
Co.,  80  Cal.  189,  22  Pac.  62;  Modoc  also,  Miller  v.  Enterprise  Co.,  145 
L.  &  W.  Co.  v.  Booth,  102  Cal.  151,  Cal.  652,  79  Pac.  439;  Anaheim  W. 
36  Pac.  431;  Fifield  v.  Spring  Val-  Co.  v.  Fuller,  50  Cal.  334,  88  Pac. 
ley  W.  Co.,  130  Cal.  554,  62  Pac.  978;  Huffner  v.  Sawday,  153  Cal. 
1054;  Coleman  v.  Le  Franc,  137  86,  94  Pac.  427;  Miller  &  Lux  v. 
Cal.  214,  69  Pac.  1011;  San  Joaquin  Madera  etc.  Co.,  155  Cal.  59,  99  Pac. 
Co.  v.  Fresno  Flume  Co.  (Cal.  1910),  502,  22  L.  E.  A.,  N.  S.,  391;  Miller 
112  Pac.  182.  See,  also,  dissenting  v.  Bay  Cities  Co.,  157  Cal.  256,  107 
opinion  of  Chief  Justice  -Beatty  in  Pac.  115;  Cal.  Pastoral  Co.  v.  Enter- 
Baxter  v.  Gilbert,  125  Cal.  584,  58  prise  Co.,  127  Fed.  743;  Bliss  v. 
Pac.  129,  374;  and  concurring  opin-  Johnson,  76  Cal.  596,  16  Pac.  542, 
ion  of  Shaw,  J.,  in  Miller  v.  Bay  18  Pac.  785.  In  1911  a  California 
Cities  Co.,  157  Cal.  256,  107  Pac.  statute  speaks  of  storage  of  flood 
115;  and  opinion  of  Shaw,  J.,  in  waters.  See  Cal.  Stats.  1911,  c.  406, 
Turner  v.  James  Canal  Co.,  155  Cal.  sec.  17. 

82,    132-   Am.    St.    Eep.    59,    99    Pac.  A    Massachusetts    statute    provided 

520,  22  L.  E.  A.,  N.  S.,  401,  17  Ann.  for    condemnation    of    stream    waters . 

Cas.    823    (a    case    between    riparian  that  were  in   excess   of   the   "natural 


I  825  Ch.  35.     AGAINST  NONBIPABIAN  OWNERS.     (3d  ed.)  881 

accord  with  a  similar  suggestion  in  Lux  v.  Haggin:8  "We  are  not 
prepared  to  say  but  that  even  where  the  common  law  prevails,  pro- 
vision may  be  made  for  the  storing  and  distribution  of  waters,  the 
result  of  extraordinary  floods  caused  by  the  melting  of  the  snows, 
or  long-continued  and  heavy  rains  in  the  mountains  or  near  the 
source  of  a  river,  since  such  an  extraordinary  freshet  would  not  be 
the  ordinary  flow  of  the  stream." 

As  to  such  storm  waters,  their  taking  has  been  held  to  be  wrongful 
only  when  actual  or  prospective  damage  is  possible  to  the  use  of  the 
land  of  the  complaining  riparian  proprietor.  When  not  so,  the  tak- 
ing has  been  allowed.9  When  damage  possible,  denied ;  thus,  surplus 
over  ordinary  flow  cannot  be  diverted  from  riparian  owners  in  ab- 
sence of  a  showing  at  what  stages,  if  at  all,  the  surplus  could  be 
diverted  without  damage  to  the  riparian  proprietors.10  This  rule 
has  been  approved  in  Nebraska,11  saying:  "Connected  with  this 
same  question  is  involved  the  right  of  the  plaintiff,  even  as  against 
a  riparian  owner,  to  divert  the  storm  or  flood  waters  passing  down 
the  stream  in  times  of  freshets.  Hall  at  most,  as  a  riparian  owner, 
was  entitled  to  only  the  ordinary  and  natural  flow  of  the  stream, 
or  so  much  as  was  found  necessary  to  propel  his  mill  machinery, 
and  could  not  lawfully  claim,  as  against  an  appropriator,  the  flow 
of  the  flood  waters  of  the  stream." 

flow."     Held,    this    means    the    ordi-  (1857),    19   D.    1006    (Scotch),   cited 

nary  flow  when  not  increased  by  un-  in   Ferguson   on   The  Law   of   Water 

usual  freshets  or  rains,  such  unusual  in  Scotland,  p.  230.) 

freshets     or     rains     being     "surplus  8  69  Cal.  255,  10  Pac.  674. 

water."     Nemasket    Mills   v.    City    of  »  Modoe  L.  &  L.  Co.  T.  Booth,  102 

Taunton,    166    Mass.    540,   44   N.    E.  Cal.  151,  36  Pac.  431.     In  Fifield  v. 

609.  Spring     Valley     Water     Works,     130 

But    see    Burwell    v.    Hobson,     12  Cal.  552,  62  Pae.  1054,  it  is  held  that 

Gratt.    (Va.)    322,  65  Am.  Dec.  247;  a   riparian   proprietor  is  not  entitled 

McCarter   v.   Hudson   W.   Co.,   70   N.  to  an  injunction  to  restrain  a  water 

J.   Eq.   695,    118   Am.    St.   Rep.    754,  company  engaged  in  supplying  water 

65     Atl.     489;     Sparks     etc.     Co.    v.  for    public    use    from    diverting    the 

Town  of  Newton,  57  N.  J.  Eq.  383,  storm   or   flood    waters   of   the    creek 

384,   41   Atl.   385;    Dorman  v.   Ames,  which   will    not    prevent    the    flowing 

12   Minn.  451    (Gil.  347).     See,  also,  over  his  land  of  the  ordinary  waters 

Ames   v.   Cannon   etc.    Co.,   27    Minn.  of     the     stream,     nor     in     any    way 

245,  6  Atl.  787.     Says  a  Scotch  case:  damage    his   land,    or   interfere   with 

"A   superior   heritor   is   no   more    en-  the  rights  appurtenant  thereto.     Fol- 

titled   to   divert   the   excess   of   water  lowed  in   San  Joaquin  Co.  v.  Fresno 

in   time    of    flood    over   the   ordinary  Flume  Co.  (Cal.  1910),  112  Pac.  182. 

flow  without  returning  it  before  the  1°  Semble,  Miller  v.  Enterprise  etc. 

stream   reaches   the   lands   of   the   in-  Co.,  145  Cal.  652,  79  Pac.  439;   Mil- 

ferior  heritor  than   he  is  entitled  to  ler   v.   Madera   Co.,    155   Cal.   59,    99 

appropriate    the    ordinary    flow,    and  Pac.  502,  22  L.  R.  A.,  N.  S.,  391. 

a   flood    may   be   of   great   value   for  u  Crawford  v.  Hathaway,  67  Xeb. 

scouring    or    keeping    clean    a    water-  325,  108  Am.  St.  Rep.  647,  93  N.  W. 

course."      CMacLean      r.      Hamilton  781,  60  L.  R.  A.  889. 
Water  Rights — 56 


882   (3d  ed.)    Pt.  IV.    THE  COMMON  LAW  OF  EIPARIAN  RIGHTS.    §  825 


But  the  distinction  between  a  natural  and  non-natural  part  of  the 
river  has  been  denied.  In  an  early  case  it  is  said :  ' '  But  the  rights 
of  the  riparian  proprietor  do  not  depend  up'on  the  quantity  of  water 
flowing  in  the  stream.  Nor  can  that  flow  be  said  to  be  an  extraor- 
dinary flow  which  can  be  counted  upon  as  certain  to  occur  annu- 
ally and  to  continue  for  months."12  And  in  defining  what  may 
be  such  extraordinary  flow  the  more  recent  cases  have  so  narrowed 
it  as  almost  to  destroy  it.  Thus,  some  recent  California  cases  ex- 
plain it  as  applicable  only  where  "during  times  of  extraordinary 
floods  such  diversion  will  not  perceptibly  diminish  the  stream  be- 
low," meaning,  apparently,  to  apply  the  principle  only  where  the 
facts  show  the  diversion  to  be  within  the  rule  "de  minimis."  13 

The  other  recent  California  cases  reach  a  similar  result  by  narrow- 
ing the  definition  in  another  way  and  holding  it  not  to  include 
annual  or  periodical  swellings  of  a  stream,  even  if  due  to  storms, 
if  those  storms  are  seasonal;  and  this  is  held  where  the  storm  stage 
of  the  river  continued  for  several  months,14  or  even  if  the  storm 
stage  lasts  only  a  few  days  at  a  time,  so  long  as  it  is  regularly  re- 
current.15 


12  Heilbron  v.  Fowler  etc.  Co.,  75 
Cal.  431,  7  Am.  St.  Rep.  183,  17  Pac. 
535. 

13  Anaheim  W.   Co.   v.   Fuller,   150 
Cal.    327,    88    Pae.    978;    Huffner    v 
Sawday,    153    Cal.    86,    94    Pae.   424. 
See,  also,  McFarland,  J.,  concurring, 
in   Vernon    Irr.    Co.   v.    Los   Angeles, 
106  Cal.  237,  39  Pac.  762.     The  same 
explanation  is  given  in  City  of  Pat- 
erson  v.  East  Jersey  W.  Co.,  74.  N. 
J.  Eq.  49,   70  Atl.  472    (but  holding 
a  diversion  of  ten  per  cent  not   "do 
minimis").     This  would  not  leave  the 
doctrine    of    great    practical    impor- 
tance,  since   the   flood   waters   consti- 
tute the  major  portion  of  California 
streams    in    winter,    and    a    diversion 
of  them  is  not  only  perceptible,  but 
is  practically  a  diversion  of  the   en- 
tire winter  stream. 

14  Miller  v.  Madera  Canal  Co.,  155 
Cal.   59,   99   Pac.   502,   22   L.   R.   A., 
N.   S.,  391,  quoted  infra.     In  a  case 
in    the    Federal    court    for    Southern 
California    it    was    said:   "Storm    or 
freshet  waters,  which  any  person  who 
can  may  impound  and  use,  are  'such 
waters  as  flow  down  a  stream  during 
and    after    a    rainstorm,    and    which 


are  in  excess  of  the  ordinary  flow.' 
[Citing  Fifield  case].  I  am  of 
opinion,  from  the  evidence  submitted 
on  this  hearing  that  the  waters  which 
the  canal  and  dam  in  controversy  in 
this  suit  were  intended  to  divert,  and 
are  capable  of  diverting,  do  not  fall 
within  said  definition,  but  are'  a 
flow  which  comes  every  year  and 
lasts  for  three  or  four  months."  Cal. 
Past.  Co.  v.  Enterprise  Co.,  127  Fed. 
743.  In  the  Edgar  case  above,  the 
heavy  rains  relied  on  continued  "dur- 
ing the  last  winter  and  spring"  (70 
Cal.  289,  11  Pac.  704).  In  the 
Heilbron  cases  the  floods  referred  to 
"continued  for  months,"  as  is  seen 
by  the  report  in  75  Cal.  117,  17  Pac. 
65.  In  the  Modoc  case  the  rise  like- 
wise was  a  matter  of  four  months, 
viz.,  June,  July,  August  and  Septem- 
ber (102  Cal.  158,  36  Pac.  431).  In 
the  Fifield  case  the  definition  of  the 
extraordinary  water  was  so  broad  as 
to  include  any  water  "after  a  rain- 
storm." In  the  Coleman  case  it  was 
the  water  accumulated  during  a  whole 
season. 

i»  Miller    v.    Bay    Cities    W.    Co., 
157  Cal.  256,  107  Pac.  115. 


825 


Ch.  35.     AGAINST  NONRIPARIAN  OWNERS.     (3d  ed.)  883 


In  the  recent  case  of  Miller  v.  Madera  etc.  Co.16  it  was  held  that 
to  constitute  such  non-natural  waters,  the  rise  must  be  extraordinary 
and  occurring  only  on  very  rare  occasions.  It  is  not  sufficient  if 
an  annual  overflow,  of  regular  annual  occurrence,  even  if  at  highest 
stages  overflowing  banks  and  spreading  over  adjacent  low-lying 
lands,  where  the  overflow  continues  to  move  down  with  the  main 
flow  in  a  continuous  body,  not  becoming  vagrant,  lost  or  wasted,  but 
recedes  back  into  the  channel  when  the  water  stage  lowers,  and  is 
a  condition  to  be  anticipated  in  every  season  of  ordinary  rainfall, 
failing  only  in  seasons  of  drought.  On  rehearing  this  was  emphat- 
ically affirmed,  the  court  saying  (per  Mr.  Justice  Sloss)  that  such 
facts  distinguish  the  case  from  the  Modoc  and  Fifield  cases,  and 
that  no  storm-water  problem  is  involved  upon  such  facts.  This 
definition  of  what  is  such  non-natural  flow  so  narrows  it  as  to  prac- 
tically destroy  the  distinction  between  different  parts  of  the  stream 
upon  any  supposed  basis  of  one  segment  being  natural  flow  overlain 
by  or  next  to  some  other  kind  of  a  flow  in  the  same  channel.17 


16  155  Cal.  59,  99  Pac.  502,  22  L. 
R.  A.,  N.  S.,  391. 

17  The  court  said,  per  Mr.  Justice 
Sloss,  that  "such  flow  was  one  which 
occurred    in    almost   every    season    of 
normal   rainfall,   and   that    it   passed 
the    plaintiff's   land    in    a   continuous 
body    of    water,    through    a    well-de- 
fined channel,  and  eventually  emptied 
into     the     San     Joaquin     River     and 
through    it    into    the    sea.     That    the 
owners   of  land  bordering   upon   such 
a    flow    of    water    are    riparian    pro- 
prietors,   entitled    to    all    the    rights 
pertaining    to    riparian   ownership,    is 
a   proposition   fully  sustained  by  the 
authorities    cited    in    the    department 
opinion.     It     is     suggested     that     a 
different     rule     should     apply     in     a 
semi-arid  climate  like  that  of  Califor- 
nia, where  the  fall  of  rain  and  snow 
occurs   during   only  a   limited   period 
of      the      year,      and,      consequently, 
streams'  carry  in  some  months  a  flow 
of  water  greatly  exceeding  that  flow- 
ing  during  the  dry  season,   with  the 
result  that  such  increased  flow  is  not, 
at    all    points,    confined    within    the 
banks  which  mark   the   limits   of   the 
stream  at  low  water.     But  no  author- 
ity   has   been    cited,    and    we    see    no 
sufficient    ground    in     principle,     for 


holding  that  the  rights  of  riparian 
proprietors  should  be  limited  to  the 
body  of  water  which  flows  in  the 
stream  at  the  period  of  greatest 
scarcity.  What  the  riparian  pro- 
prietor is  entitled  to  as  against  non- 
riparian  takers,  is  the  ordinary  and 
usual  flow  of  the  stream.  There  is 
no  good  reason  for  saying  that  the 
greatly  increased  flow  following  the 
annually  recurring  fall  of  rain  and 
melting  of  snow  in  the  region  about 
the  head  of  the  stream  is  any  less 
usual  or  ordinary  than  the  much 
diminished  flow  which  comes  after 
the  rains  and  the  melted  snows  have 
run  off.  Perhaps  other  considera- 
tions should  apply  where  a  river,  in 
times  of  heavy  flow,  runs  over  its 
banks  in  such  manner  that  large 
vnlumes  of  water  leave  the  stream 
and  spread  over  adjoining  lands  to 
an  indefinite  extent,  there  to  stagnate 
until  they  evaporate  or  are  absorbed 
by  the  soil.  But  the  evidence  of  re- 
spondent, and  this  was  the  evidence 
on  which  the  court  below  acted,  fails 
to  show  that  the  water  which  defend- 
ant seeks  to  divert  was  such  'vagrant 
water,' "  etc.  Miller  v.  Madera 
Canal  Co.,  155  Cal.  59,  99  Pac.  502, 
22  L.  R.  A.,  N.  S.,  391. 


884  (3d  ed.)    Pt.  IV.    THE  COMMON  LAW  OF  KIPAEIAN  EIGIITS.    §  826 

In  the  later  case  of  Miller  v.  Bay  Cities  W.  Co.18  it  was  laid  down 
that  "there  can  be  DO  question"  but  that  nonriparian  diversion 
may  be  made  against  a  riparian  owner  of  water  which  can  serve  no 
useful  purpose  in  its  natural  situation,  but  in  very  emphatic  terms 
denies  that  flood  waters  serve  no  useful  purpose  to  riparian  lands, 
however  rapidly  they  pass  by,  saying  that  only  when  they  reach  the 
sea  can  they  be  called  waste  waters  serving  no  useful  purpose  to 
neighboring  landowners.  The  facts  presented  as  extreme  a  type  of 
storm  waters  as  can  occur.  The  opinion  is  too  long  to  admit  of 
quotation  here,  especially  as  it  is  considered  in  connection  with  per- 
colating waters  hereafter.19 

In  the  still  later  case  of  San  Joaquin  Co.  v.  Fresno  Flume  Co.20 
the  court  reviews  the  foregoing  authorities  and  says:  "It  will  be 
found,  therefore,  that  the  decisions  of  this  state  not  only  do  not 
deny  the  right  to  the  use  of  storm  and  flood  waters,  but  encourage 
the  impounding  and  distribution  of  those  waters  wherever  it  may 
be  done  without  substantial  damage  to  the  existing  rights  of 
others."21 

(3d  ed.) 

§  826.  Same. — As  a  whole,  these  cases  have  pretty  much 
dropped  the  flood-water  distinction,  and  proceed  instead  upon  the 
minority  contention  already  set  forth,  that  possible  damage  to  the 
complaining  proprietor's  capacity  of  use,  or  loss  of  possible  benefit 
to  his  riparian  land,  prospective  if  not  now  present,  must  be  shown 
before  an  act  is  wrongful.  This  was  the  way  in  which  the  California 
court  explained  them  without  the  insertion  of  the  flood-water  idea, 
saying  in  Miller  v.  Madera  Co.:  22  "But  counsel  for  appellants  rely 
upon  the  cases  of  Fifield  v.  Spring  Valley  Waterworks  ^  and  Cole- 
man  v.  La  Franc,24  in  support  of  their  claim  that  a  riparian  pro- 
prietor cannot  restrain  the  diversion  of  the  storm  or  freshet  waters 
of  a  stream  when  such  diversion  will  not  prevent  the  flowing  over 
his  land  of  the  ordinary  waters  of  the  stream,  or  in  any  way  inter- 
fere with  his  rights  appurtenant  thereto.  We  do  not  understand 

18  (1910),   157   Cal.   256,   107  Pae.  artificial  increment  in  the  stream  pro- 
115.  duced  by   defendant;    which   together 

19  Infra,  sees.  1057,  1087.  make   the  passage  in   the   text   to   be 

20  (Cal.  1910),  112  Pac.  182.  only  obiter. 

21  It  should  be  noted  in  this  case  22  155  Cal.  59,  99  Pac.  502,  22  L. 
that  the  opinion  closes  by  saying  de-  E.  A.,  N.  S.,  391. 

fendant   was   a  riparian   owner   mak-  23  139  Cal.  352,  62  Pac.  1054. 

ing   riparian   use   only;    and   further  24  137  Cal.  214,  69  Pac.  1101. 

point  is  made  of  the  existence  of  an 


§826  Ch.  35.     AGAINST  NONRIPARIAN  OWNERS.     (3d  ed.)  885 

these  authorities  cited  to  sustain  the  proposition  as  broadly  as  ap- 
pellant contends All  they  decide  is,  that  an  injunction  re- 
straining the  diversion  of  storm  or  flood  waters  will  not  be  granted 
at  the  instance  of  a  riparian  owner  when  it  appears  that  he  will 
not  be  injured  in  any  way  by  such  diversion."  And  the  later  case 
of  San  Joaquin  Co.  v.  Fresno  Flume  Co.,25  said  the  same  thing. 

A  point  sometimes  mentioned  in  the  storm-water  cases  is 
that  of  recapturing  artificial  increments  to  a  stream,  as  considered 
in  the  first  part  of  this  book.1  Where  the  facts  show  that  the 
presence  of  such  waters  in  the  channel  is  due  to  the  labor  of  the 
impounder,«it  is  an  artificial  increment  to  the  stream  produced  by 
the  labor  of  man,  and  belongs  to  him  who  produced  it,  because  a 
man  must  be  allowed  to  enjoy  the  fruits  due  to  his  own  labor  alone. 
Speaking  of  a  reservoir  constructed  in  a  place  where  there  never  was 
a  watercourse,  it  has  been  said  arguendo:  ''The  water  itself  is  the 
property  of  the  company.  It  was  not  taken  from  a  running  stream 
nor  from  a  lake It  was  collected  by  the  company  as  it  de- 
scended from  the  heavens.  Whatever  may  be  the  differences  of 
opinion  as  to  the  ownership  of  running  waters,  or  of  waters  of 
navigable  streams,  or  of  lakes,  it  has  never  been  doubted  that  water 
collected  by  individual  agency,  from  the  roof  of  one's  house,  or 
in  hogsheads,  barrels  or  reservoirs,  as  it  descends  from  the  clouds, 
is  as  much  private  property  as  anything  else  that  is  reduced  to 
possession,  which  otherwise  would  be  lost  to  the  uses  of  man. ' ' 2 
This  applies  to  artificial  increment  of  a  stream  brought  to  flow  by 
the  works  of  man  alone  3  arid  it  applies  to  the  impounding  of  storm 
waters  before  they  ever  reach  a  stream  channel*  In  a  recent  Cali- 

25  (Cal.  1910),  112  Pac.  182.  that  this  right  cannot  extend  further 

1  Supra,  sees.  38,  61,  279.  than  a  right  to  the  flow  in  the  brook 

2  Dissenting   opinion   of   Field,   J.,  itself,   and    to    the   water    flowing   in 
in  Spring  Valley  W.  W.  v.  Schottler,  some   defined   natural   channel,   either 
110  U.  S.  347,  4  Sup.  Ct.  Rep.  48,  28  subterranean  or  on  the  surface,  com- 
L.  Ed.  173.  municating    directly    with    the    brook 

*3  Pomona  W.  Co.    v.   San  Antonio  itself.     No  doubt,  all  the  water  fall- 

W.   Co.,    152   Cal.   618,   93   Pac.   881.  ing   from   heaven  and  shed  upon  the 

"The  right  of  the  inferior  heritor  is  surface    of    a    hill,    at    the    foot    of 

only  to  receive  the  natural  supply  of  which    a    brook    runs,    must,    by    the 

water,    and    where     that    is     supple-  natural  force  of  gravity,  find  its  way 

mented    by    artificial    operations,    he  to  the  bottom,  and  so  into  the  brook; 

cannot  complain  if  the  artificial  con-  but  this  does  not  prevent  the  owner 

dition  is  reduced."     Ferguson  on  The  of  the  land  on  which  this  water  falls 

Law  of  Water  in  Scotland,  p.  231.  from    dealing    with    it    as    he    may 

4  In  a  leading  case  it  is  said:   "The  please,     and     appropriating     it.     He 

right  to  the  natural  flow  of  the  water  cannot,  it  is  true/ do  so  if  thf  water 

in  Longwood  Brook   undoubtedly  be-  has  arrived  at  and  is  flowing  in  some 

longs  to  the  plaintiff;   but  we  think  natural  channel  already  formed.     But 


886  (3d  ed.)    Pt.  IV.    THE  COMMON  LAW  OF  RIPARIAN  EIGHTS.    §  827 

fornia  "  storm-water "  case,  point  was  made,  in  refusing  an  injunc- 
tion, "that  the  dam  actually  increases,  and  certainly  does  not 
diminish,  the  waters  of  Stevenson  Creek. ' '  5 

But  the  storm-water  argument,  as  a  rule,  has  been  one  to  impound 
waters  already  in  a  channel,  when  they  came  there  by  nature;  the 
claim  of  artificial  agency  extending  only  to  the  detention  or  diver- 
sion thereof.  The  principle  of  recapturing  from  the  channel  the 
fruits  of  one's  own  labor  consequently  does  not  usually  apply. 


C.     CAN   THESE    MINORITY   RULINGS   BE    RECONCILED    TO   PRIN- 
CIPLE? 
(3d  ed.) 

§  827.  The  Answer  must  be  Made  Under  the  Common  Law. — 
It  being  long  settled  that  the  common  law  of  riparian  rights  is 
in  force  in  California,  it  need  hardly  be  said  that  to  declare  these 
minority  rulings  to  be  more  to  one's  liking  is  not  reconciling  them 
to  principle.  That  may  be  well  enough  in  Colorado,  where  riparian 
rights  are  rejected,  but  the  only  legitimate  inquiry  in  a  common -law 
jurisdiction  is  whether  they  can  have  support  in  the  common  law 
of  riparian  rights  itself;  and  in  these  minority  California  cases 
there  is  only  one  having  any  other  idea.6 

We  proceed  to  an  inquiry  under  the  common  law  alone. 

(3d  ed.) 

§  828.  Possible  Distinction  Between  Diminution  of  Flow  and 
Depreciation  of  Estate. — For  the  holding  that  nonriparian  diver- 
sion is  per  se  wrongful  there  appear  to  be  distinct  grounds  taken 
in  different  cases. 

The  usual  one  is  in  attributing  it  to  the  doctrine  of  injuria  sine 
damno.  That  involves  defining  the  riparian  right  as  one  to  the  floiv, 
rather  than  to  the  use  (present  or  future)  of  the  riparian  land. 
As  is  said  in  one  of  the  leading  cases  in  the  law  of  waters,  "We 
by  no  means  dispute  the  truth  of  this  proposition  with  respect  to 

he  has  a  perfect  right  to  appropriate  (Cal.  1910),  112  Pac.  182.  Hereto- 
it  before  it  arrives  at  such  a  channel.  fore,  California  "modification"  state- 
In  this  case  a  basin  is  formed  in  his  ments  uniformly  referred  only  to 
land,  which  belongs  to  him,  and  the  riparian  uses  between  themselves 
water  from  the  Heavens  lodges  there.  (supra,  sees.  673,  699,  749a,  799),  and  ' 
There  is  here  no  watercourse  at  all"  denied  "modification"  when  a  nonripa- 
(being  a  natural  pond).  Broadbent  rian  use  stepped  in.  The  minority  rul- 
v.  Ramsbotham,  11  Ex.  602.  ings  above  never  asserted  that  they 

5  San  Joaquin  Co.  v.  Fresno  Flume  were  modifying  the  common  law,  but, 
Co.  (Cal.  1910),  112  Pac.  182.  on    the    contrary,    claimed    that    they 

6  San  Joaquin  Co.  v.  Fresno  etc.  Co.  were  following  its  true  intent. 


§  828  Ch.  35.     AGAINST  NONRIPARIAN  OWNERS.     (3d  ed.)  887 

every  description  of  right.  Actual  perceptible  damage  is  not  in- 
dispensable as  the  foundation  of  an  action;  it  is  sufficient  to  show 
the  violation  of  a  right,  in  which  case  the  law  will  presume  damage ; 
injuria  sine  damno  is  actionable But  in  applying  this  ad- 
mitted rule  to  the  case  of  rights  in  running  water,  and  the  analogous 
cases  of  rights  to  air  and  light,  it  must  be  considered  what  the 
nature  of  those  rights  is,  and  what  is  a  violation  of  them."7  This 
authority  then  proceeds  to  show  that  the  nature  of  the  riparian  right 
is  primarily  one  to  the  use  of  one's  land  (a  usufruct)  in  a  passage 
we  quoted  in  a  preceding  chapter.8  The  rule  of  injuria  sine 
damno  unquestionably  applies  without  regard  to  actual  damage  to 
present  use.9  But  in  applying  the  rule  also  without  inquiry  into 
prospective  or  future  detriment  to  the  use  or  value  of  the  riparian 
estate,  perhaps  such  decisions  illustrate  the  result  of  regarding  the 
right  of  the  riparian  proprietor  as  one  to  the  stream  itself  as  a 
corpus  of  the  freehold,  under  the  "cujus  est  solum"  doctrine,  in- 
stead of  as  a  usufruct — a  matter  concerning  which  we  refer  the 
reader  to  a  previous  chapter.10  The  doctrine  of  injuria  sine  damno 
cannot  itself  make  nonriparian  diversion  actionable  per  se  unless  the 
riparian  right  be  defined  one  to  the  flow  as  representing  the  body 
of  the  stream,  distinguished  from  the  use  and  benefit  of  the  land, 
and  we  believe  such  definition  of  the  riparian  right  rests  upon  the 
"cujus  est  solum"  doctrine,  which  properly  has  no  application  to 
the  water  of  running  streams. 

With  that  laid  aside,  the  question  would  have  to  be,  not  whether 
there  was  an  interference  with  the  flow  of  the  stream,  but  whether 
there  was  interference  with  the  value  of  the  riparian  estate,  or 
(in  the  absence  of  present  damage)  with  its  possible  future  en- 
joyment. Then  nonriparian  use  might  not  be  actionable  where 
such  loss  or  detriment  is  impossible  upon  the  facts,  as  where 
the  complaining  riparian  land  is  an  alkali  flat,  worthless  for  irri- 
gation.1 

7  Baron  Parke,  in  Embrey  v.  Owen,  853,  discussing  Bickett  v.  Morris,  L.  R. 
6  Ex.  352,  20  L.  J.  Ex.  212.  1  H.  L.  (Sc.)  47,  which  had  seemed  to 

8  Supra,  sec.  694.  hold  any  erection  in  the  bed  of  a  stream 

9  Supra,  sec.  816.  to  be  a  nuisance  per  se  (alveo  being 

10  Supra,  sees.  2  et  seq.,  34,  696  et      the  name  for  "bed"  in  civil  law,  these 
seq.  being     Scotch     cases).     For     another 

i  "But   I  do   not   think  it  was  in-  case  discussing  Bickett  v.  Morris  un- 

tended   to  be   decided,   and   I  do   not  favorably,  see  Norway  Co.  v.  Bradley 

think  it  is  the  law,  that  an  erection  (1872),   52   N.   H.   86.     Referring  to 

in  alveo  of  a  natural  stream  is  illegal  Bickett   v.   Morris   the  vice-chancellor 

per  se,"  etc.,  per  Lord  Blackburn,  in  in    Belfast    Ropeworks    Co.    v.    Boyd 

Orr  Ewing  v.  Colquhoun,  2  App.  Cas.  (1887),   21   L.   R.   Ir.   565,   said:  "I 


888  (3d  ed.)    Pt.  IV.    THE  COMMON  LAW  OF  EIPAEIAN  EIGHTS.    §  829 

(3d  ed.) 

§  829.  Same. — But  more  difficulty  is  given  by  other  reasons 
for  holding  it  wrong  per  se,  while  admitting  that  in  principle  there 
must  be  a  possibility  of  damage  (present  or  future)  to  the  riparian 
estate  to  put  the  .nonriparian  owner  in  the  wrong.  One  is  that 
impossibility  of  damage  is  merely  a  matter  of  words  for  the  doc- 
trine "de  minimis."2  And  so,  for  example,  it  is  said  in  effect 
by  Mr.  Justice  McFarland,3  that  this  is  all  that  the  reductio  ad 
absurdum  above  mentioned  comes  down  to. 

Or,  without  identifying  "impossibility  of  detriment"  with  cases 
of  "de  minimis,"  it  is  said  that,  admitting  the  necessity  of  such 
possible  detriment  in  principle,  yet  in  practice  it  is  impossible  to 
prove  wrhat  may  be  a  future  detriment ;  that  the  range  of  inquiry  it 
opens  into  the  future  would  be  forbidding  to  riparian  owners,  and 
impractical  of  application.4  An  illustration  frequently  put  is  given 
in  some  of  the  California  cases  saying  that  "the  flow  of  water  of  a 
stream,  whether  it  overflow  its  banks  or  not,  naturally  irrigates  and 
moistens  the  ground  to  a  great  and  unknown  extent,  and  thus  stimu- 
lates vegetation,  and  the  growth  and  decay  of  vegetation  add  not 

take  the  law  to  be  as  stated  by  Mr.          3  Concurring    specially    in    Vernon 

Shaw  in  his  able  and  clear  argument,  Irr.  Co.  v.  Los  Angeles,  106  Gal.  237, 

that  it  was  not  meant  that  the  mere  39  Pac.  762. 

erection  of  a  structure  is  per  se  &  •*  "I  agree  with  your  Lordship  that 
wrong.  There  must  be  an.  erection  the  idea  of  compelling  a  party  to  de- 
causing  present  damage,  or  reason-  fine  liow  it  will  operate  upon  him,  or 
ably  likely  in  the  future  to  do  so ;  what  damage  or  injury  it  will  produce, 
and  the  riparian  proprietors  who  can  is  out  of  the  question."  Lord  Neaves 
show  that  the  erection  of  the  structure  in  Morris  v.  Bickett  (1864),  2  M. 
is  reasonably  likely  to  cause  damage,  1082,  4  M.  H.  L.  44  (Scotch) ;  Fer- 
may  bring  an  action  to  have  the  ob-  guson  on  The  Law  of  Water  in  Scot- 
struction  removed."  (But  adds,  "the  land,  p.  200.  In  an  English  case  it 
mere  sale  of  water  itself  to  anyone  is  said:  "Lord  Westbury  concurs  in 
not  a  riparian  proprietor  is  unreason-  this  judgment  entirely,  and  the  prin- 
able  and  illegal.")  ciple,  one  sees  at  once,  is  applicable 
2  In  Bickett  v.  Morris  (supra)  on  to  the  present  case.  It  is  this: 
appeal  to  the  House  of  Lords  (1  H.  'You,  as  a  riparian  proprietor,  see 
L.  (Sc.  App.)  47,  at  59),  Lord  Corn-  something  done  which  is  not  at  all 
worth  declared:  "It  was  said  in  to  your  detriment  now,  but  may 
argument,  'Then,  if  I  put  a  stake  in  hereafter  be  greatly  to  your  detri- 
the  river,  am  I  interfering  with  the  ment,  though  you  cannot  precisely 
rights  of  the  riparian  proprietors?'  point  out  how,  or  to  what  extent;  if 
To  this  I  Should  answer,  de  minimis  you  do  not  interfere,  a  right  will  be 
non  curat  praetor.  But  further,  it  acquired  against  you  by  which  you 
might  be  demonstrated  in  such  a  will  hereafter  be  affected;  and  you 
case,  not  that  there  was  an  extreme  have  a  right  to  say,  things  shall  re- 
improbability,  but  that  there  was  an  main  exactly  as  they  were.'  "  Crossley 
impossibility  of  any  damage  result-  v.  Lightowler,  L.  Ii.  3  Eq.  296. 
ing  to  anyone  from  the  act."  (Italics  inserted.) 


§  830  Ch.  35.     AGAINST  NONRIPARIAN  OWNERS.     (3d  ed.)  889 

only  to  the  fertility,  but  to  the  substance  and  quantity  of  the  soil,"  5 
which  clearly  admits  the  necessity  that  there  be  a  detriment  to  the 
riparian  estate  rather  than  merely  to  the  flow,  but  considers  inquiry 
into  its  extent  to  be  too  problematical  and  incapable  of  ascertain- 
ment to  be  entertained  in  practice.8 

There  may  be  much  force  in  both  of  these  positions ;  7~15  but  for 
California  purposes  it  seems  pertinent  that  the  percolating  water 
cases,  involving  the.  identical  matter,  are  making  the  inquiry,  and 
are  finding  surpluses  to  exist  without' invoking  the  rule  de  minimis. 
Damage  from  loss  of  natural  subirrigation  was  examined  into,  in  a 
recent  case  of  percolating  water,  as  a  question  of  fact,  and  held  not 
to  exist  in  fact.  It  was  regarded  as  a  question  of  fact  to  be  proved 
in  the  ordinary  way,  and  not  assumed.16  True,  the  inquiry  in  the 
percolating  water  cases  is  opening  a  wide  range,  and  tends  to  put  a 
heavy  burden  upon  the  small  farmer  protesting  distant  use,  but  so 
far  it  has  been  found  practical,  and  there  does  not  seem  to  be  any 
difference  between  the  theories  of  the  new  percolating  water  cases 
and  those  of  riparian  rights  upon  streams.  Moreover,  does  not  the 
inquiry  have  to  be  made  in  measuring  damage  when  the  riparian 
right  is  condemned  upon  eminent  domain  ? 

(3d  ed.) 

§  830.  Same. — It  may  be,  then,  that  an  interference  with  the 
possible  use  or  future  value  of  the  estate  would  (irrespective  of  the 
rule  "de  minimis")  be  a  different  thing  from  diminution  of  flow  on 
larger  streams.  Upon  the  smaller  streams  any  nonriparian  diminu- 
tion of  flow  will  per  se  cause  such  depreciation,  and  there  will, 
indeed,  be  no  difference  between  the  two  as  a  rule ;  but  upon  larger 
streams  it  may  be  that  there  could  be  a  distinction.  It  may  be 
that  the  reductio  ad  absurdum  is  merely  a  restatement  of  the  rule 
de  minimis.  But  it  may  also  be  that  the  reductio  ad  absurdum  is 
sound ;  that  diminution  of  flow  by  nonriparian  use  is  not  a  wrong 
per  se;  that  the  wrong  arises  when  (and  only  when)  there  is  proved 
as  a  fact  a  depreciation  caused  thereby  to  the  value  of  the  riparian 

5  Heilbron   cases   cited   supra,   sec.  the   fertility  it   imparts   to   his   land, 
816.     The  quotation  is  from  Heilbron  and  the  increase  in  the  value  of  it." 
v.   Water  Ditch  Co.,  75   Cal.  117,  17  Pugh   v.   Wheeler,   2    Dev.   &   B.    (N. 
Pac.  65.  C.)  55. 

6  "The  truth  is  that  every  owner  of  7-15  See  especially  sec.  367 ,  supra. 
land  on  a  stream  necessarily  and  at  all  16  Newport  v.  Temescal  W.  Co.,  149 
times  is  using  water  running  through  Cal.  531,  87  Pac.  372,  6  L.  R.  A.,  N. 
it,    if    in    no    other    manner    than   in  S.,  1098. 


890   (3d  ed.)    Pt.  IV.    THE  COMMON  LAW  OF  EIPAEIAN  RIGHTS.     §  830 

estate  or  to  the  present  or  future  use  of  it  (wholly  irrespective  of 
any  question  of  reasonableness) . 

It  may  be  noted  that  in  the  more  recent  California  cases  declar- 
ing nonriparian  diminution  of  flow  per  se  a  wrong,  and  declaring 
damage  to  be  entirely  immaterial,  had  a  possible  prospective  dam- 
age to  use  been  regarded  as  material,  it  would  have  been  found 
to  exist  on  the  facts  presented  and  to  have  warranted  injunction 
even  under  the  Modoc  case.  The  riparian  proprietor  in  the  recent 
cases  showed  ability  to  use  all  the  water  diverted  from  him;  he 
had  capacity  to  use  it  if  he  in -the  future  so  decided,  and,  of  course, 
the  common  law  will  protect  future  use  as  much  as  present  use. 
As  there  was  thus  prospective  damage  shown,  this  may  possibly 
be  a  ground  on  which  to  reconcile  the  later  cases  with  the  Modoc 
case,  and  have  them  in  no  way  inconsistent.  That  there  was  pros- 
pective damage  in  the  recent  cases  appears,  for  example,  in  the 
Anaheim  case,  saying  the  taking  of  a  part  of  the  water,  would  not 
leave  enough  for  plaintiff's  land;17  and  in  the  Huffner  case,  say- 
ing that  the  right  to  restrain  a  diversion  "does  not  rest  upon  the 
extent  to  which  they  have  used  the  water,  nor  upon  the  injury  which 
might  be  done  to  their  present  use. ' ' 18  This  may  be  contrasted 
with  the  Modoc  case  which  spoke  of  there  being  ' '  no  injury  to  him 
or  his  land,  present  or  prospective."  Likewise  in  Miller  v.  Madera 
Co.19  the  nonriparian  diversion  was  enjoined  because  it  was  water 
"which  is  or  may  be  beneficial  to  his  land";  and  in  Miller  v.  Bay 
Cities  Water  Co.,20  because  the  water  "served  some  useful  purpose" 
in  connection  with  the  neighboring  lands.  Of  all  these  cases  it 
might  be  said,  as  was  said  in  a  Connecticut  case  frequently  cited  in 
support  of  the  rule  of  injuria  sine  damno,  "It  does  not  appear  that 
there  was  any  controversy  between  the  parties  on  the  question 
whether  the  stream  was  capable  of  being  beneficially  used  upon  the 
plaintiff's  land The  case,  therefore,  is  not  one  where  a  pro- 
prietor bounding  on  a  stream  seeks  to  recover  -for  a  diversion  of  it 
from  his  land  when  the  water,  if  not  so  diverted,  could  not  have 
been  used  for  any  beneficial  purpose."21 

17  Anaheim  etc.  Co.  v.  Fuller,  150  18  (Cal.),  94  Pac.,  at  426.     Italics 

Cal.  at  335,  88  Pac.  978,  saying :   "The  ours- 

court  finds,  on  sufficient  evidence,  that  ™  155    Cal.    59,     99     Pac.   502,    22 

,,      ,.        .         ,,  ,,      j  £     -,           •<•    i  L.  R.  A.,  N.  S..  391. 

the  diversion  of  the  defendants,  it  al-  20  .--'  ~  ,    9Vg    ,„„  p        ,,,. 

lowed,   would   render   plaintiffs    land          21  Parker  v.  Gris'wold,  17  Conn.  288 , 
much  less  fertile   and  valuable."  42  Am.  Dec.  739. 


§  831  Ch.  35.     AGAINST  NONEIPARIAN  OWNERS.     (Sd'ed.)  891 

(3d  ed.) 

§  831.  Application  of  the  Distinction  by  Confining  the  De- 
cision to  the  Parties  Litigant. — The  application  of  the  foregoing 
in  practice  would  lie  in  the  principle  of  confining  the  decision  to  the 
parties  litigant. 

If  the  riparian  right  is  defined  as  one  to  the  use  of  the  riparian 
land,  now  or  in  the  future,  by  means  of  the  water,  then  the  rule 
prohibiting  any  nonriparian  diversion  is  one  for  the  protection  of 
the  whole  riparian  community,  whose  combined  requirements  or 
possible  uses  in  well-settled  regions  (such  as  the  common  law  con- 
templates) will  always  (except  upon  the  largest  rivers)  leave  no 
surplus;  and  when  all  the  riparian  owners  are  joined  in  suit,  or, 
under  statute  so  permitting,  one  sues  "for  the  benefit  of  all,"  or 
the  attorney  general  sues  on  behalf  of  the  riparian  public,  then  the 
right  of  the  whole  community  to  have  the  whole  flow  may  come  into 
play.22  Any  nonriparian  diversion  in  well-settled  regions  must 
necessarily  be  detrimental  to  the  riparian  community  as  a  whole 
except  possibly  upon  large  rivers ;  and  it  is  upon  this  public  reason 
that  the  rule  excluding  nonriparian  use  even  by  riparian  owners  is 
ultimately  based  by  the  common  law. 

But  as  a  matter  of  procedure,  where  one  riparian  owner  alone  is 
seeking  to  restrain  a  nonriparian  diversion,  it  may  be  that  he  must 
stand  upon  its  effect  upon  his  own  land  alone.  It  would  seem  no 
objection  to  this  contention  to  say  that  all  riparian  proprietors, 
taken  collectively,  may  (and,  on  small  streams  usually  will)  have 
rights  of  use  which  would  exhaust  the  entire  stream  if  exercised, 
so  that  any  diversion  by  a  nonriparian  owner  would  ipso  facto  re- 
sult in  at  least  a  prospective  damage  to  the  complaining  proprietor. 
On  very  large  streams  that  might  not  be  true;  but  even  on  small 
streams  that  proceeds  upon  the  rights  of  all  riparian  proprietors 
considered  collectively  against  the  nonriparian  owner.;  and  yet  it  is 
certain  that  they  are  not  collectively  represented  in  the  suit  itself. 
All  but  the  individual  complaining  proprietor  are  strangers  to  the 
suit  unless  actually  brought  into  court  by  proper  process;  and  the 
argument,  considering  the  rights  of  all  the  proprietors  collectively, 
is  considering  the  rights  of  parties  who  have  not  appeared  in  the 
litigation,  and  fixing  rights  between  two  individuals  by  reference 
to  outstanding  rights  in  other  persons  (strangers  to  the  suit),  which 
a  general  rule  of  law  inhibits.23  Such  other  owners  may  never  seek 

22  Supra,   sec.    627,    parties    to    ac-  23  Supra,  sec.  626  et  seq.     "Then  it 

tions;  infra,  sec.  881.  is  put  in  another  way,  in   an    extremely 


892   (3<Ted.)    Pt.  IV.    THE  COMMON  LAW  OF  RIPARIAN  EIGHTS.    §  831 

to  use  the  water,  or  may  be  all  bought  off  by  the  nonriparian  owner. 
To  apply  such  argument  is  to  go  out  of  the  record.24  Take  the  case 
of  a  nonriparian  owner  condemning  a  single  riparian  owner's  right 
on  eminent  domain.  The  nonriparian  owner  will  not  be  allowed  to 
say  that  the  damage  to  the  single  riparian  proprietor  whose  right 
is  being  condemned  is  only  nominal  because  of  the  large  number 
of  other  riparian  proprietors  with  whom  this  riparian  owner  had 
to  share.  Yet  such  would  be  the  result  if  the  collective  rights  of 
the  whole  body  of  riparian  proprietors  can  be  considered  with  re- 
gard to  a  nonriparian  owner  at  all,  when  he  is  litigating  with  only 
one  of  them. 

If  the  rulings  which  have  refused  injunction  against  nonriparian 
use  can  be  upheld  upon  this  ground  that  they  simply  confined  the 
decision  to  the  parties  litigant,  they  would  not  be  in  conflict  with 
the  undoubted  basic  principle  of  the  law  of  riparian  rights  that  non- 
riparian  owners  are  excluded  from  rights  in  streams.  The  non- 
riparian  owner  would  be  accorded  no  rights.  Permitted  to  go  his 
way  only  because  the  decision  is  confined  to  the  parties  litigant,  it 
confers  no  right  against  the  outstanding  riparian  owners,  and  is  not 
hence  a  positive  right,  but  remains  subject  to  the  paramount  title 
of  the  others.  Although  the  complaining  riparian  owner's  land 
suffers  no  detriment,  yet  some  other  riparian  owner  differently  situ- 
ated may  be  in  a  position  to  say  that  the  same  nonriparian  diversion 
may  impair  the  enjoyment  of  that  other  riparian  land,  and  then 
this  other  owner  would  be  entitled  to  the  action  to  which  the  former 
one  was  not.  Or,  again,  should  a  number  of  riparian  owners  join 
together  in  bringing  suit  or  join  all  claimants  as  defendants,  the 
nonriparian  owner  would  be  further  restricted  in  favor  of  all  these 

ingenious  way,  in  Mr.  Barber's  argu-  sit  v.  Great   Eastern    Ry.    (1884),  27 

ment,  to  the  effect  that  riparian  pro-  Ch.  D.  122,  136. 

prietors  in    a    stream    are   a  class  of  24  For  example,  in  Anaheim  W.  Co. 

persons    in    the    nature    of    a    close  v.  Fuller,  150  Cal.  335,  88  Pac.  978, 

borough,  and  that  any  one  of  them  has  the  court  said  that  perhaps  it  would 

a  right  to  object  to  the  introduction,  "take   judicial   notice"   of   the   rights 

into  that  class,  of  persons  who  have  of  outstanding  owners,   showing  that 

not   got    property   bordering     on    the  it  is  necessary  to  go  outside  the  record 

stream.     Well,  where  is  tne  authority  to  apply  the  argument.     How  would 

for  that?     It  is  an  ingenious  sugges-  such   judicial   notice   avail   if   all   the 

tion,  but  no  authority  has  been  cited  others  consented    to    the    nonriparian 

in  support  of  it,  and  I  am  very  wary  diversion!     Or,  if  the   stream  is  all, 

of  extending  to  the  discussion  of  the  excepting    complainant's      estate,    on 

rights    of    water    an    analogy    drawn  public  land?     Would  it    not    then  be 

from   close   boroughs    or   anything   of  that   the   single   complaining  riparian 

that  sort.     I   distrust   the  argument ;  owner   must   stand   on   his   own   land 

it  strikes  me   as    a    false   analogy  al-  alone? 
together."     Lindley,    L.  J.,    in    Ken- 


§  832  Ch.  35.     AGAINST  NONRIPARIAN  OWNERS.     (3d  ed.)  893 

combined,  to  such  an  extent  that  finally  no  surplus  would  remain  at 
all.  The  nonriparian  taking  we  have  contemplated  is  a  matter  that 
the  individual  plaintiff  is  suffering  no  legal  injury,  and  not  that  the 
nonriparian  owner  has  any  vested,  freehold,  permanent  right  against 
the  world. 

For  the  same  reason,  as  we  have  so  frequently  repeated,  any  such 
surplus  diversion  for  nonriparian  iise  (if  permitted  at  all)  would 
not  be  a  permanent  right,  and  hence  is  in  no  true  sense  an  "appro- 
priation," any  more  than  such  distant  diversions  of  percolating 
water.  Such  claims  less  than  freehold,  subject  to  private  paramount 
rights  in  others  (the  outstanding  riparian  owners),  who  are  thereby 
"disseised,"  or  of  possession  without  actual  right,  we  have  consid- 
ered elsewhere  at  much  length.25  The  term  "appropriation,"  under 
its  historical  meaning  in  California,  denotes  a  much  different  thing, 
being  a  permanent  freehold  right  good  "against  the  whole  world" 
when  acquired  on  public  land,  where  riparian  owners  do  not  enter 
the  question  because  they  did  not  exist  at  the  date  of  the  diversion.1 

(3d  ed.) 

§  832.     Same. — Consequently,  by  confining  the  decision  to  the 

parties  litigant,  it  may  be  that  owing  to  the  distinction  between 
diminution  of  flow  and  depreciation  of  estate,  in  extreme  cases  a 
nonriparian  diversion  (although  without  having  any  actual  right) 
cannot  always  be  enjoined  unless  a  substantial  number  of  riparian 
owners  (or  a  substantial  amount  of  riparian  land)  join  in  suit 
against'  it ;  and  that  the  refusal  of  an  injunction  might  not  be  in 
conflict  with  the  established  general  common-law  rule  excluding 
nonriparian  owners  from  rights  in  streams.  So  far  as  these  au- 
thorities used  the  term  "reasonable  use"  in  its  correlative  sense, 
as  admitting  a  nonriparian  use  into  an  equal  sharing  of  the  water 
with  riparian  lands,  they  cannot  be  defended  upon  principle,  and 
are  in  irreconcilable  conflict  with  Miller  v.  Madera  Co.2  Something 
must  be  accepted  as  settled  if  there  is  to  be  any  law  upon  the  matter 
at  all.  But  so  far  as  they  merely  inquired  into  the  honesty  and  bona 
fides  of  the  asserted  benefit  of  the  surplus  water  to  the  litigating 
riparian  land,  while  the  use  of  the  word  "reasonable"  would  then 
be  unfortunate,  it  may  be  that  they  could  have  ground  upon  which 
to  stand,  within  the  qualification  in  the  Madera  case  that  the  water 
must  be  such  as  "is  or  may  be  beneficial  to  the  riparian  land"  be- 

25  Supra,  sees.  246,  625.  2  Supra,  sec.  817. 

1  Supra,  Part  IL 


894  (3d  ed.)    Pt.  IV.    THE  COMMON  LAW  OF  RIPAEIAN  RIGHTS.    §  833 

fore  its  nonriparian  diversion  will  be  enjoined,  and  the  similar 
statement  in  San  Joaquin  Co.  v.  Fresno  Flume  Co.,3  that  there 
must  be  shown  a  "consequential  damage"  to  the  land. 

But  the  weight  of  recent  California  decision  is  against  the  validity 
of  these  authorities  even  so  explained.4  They  could  have  such  a 
result  as  the  following:  Suppose  a  good-sized  stream  flowing  two 
thousand  inches,  upon  which  a  complaining  riparian  owner  owns 
ten  acres,  which  (at  the  liberal  duty  of  an  inch  per  acre)  can  use 
(even  in  the  future)  only  ten  inches  for  irrigation.  The  above 
cases  would  permit  the  nonriparian  diversion  of  the  whole  stream, 
leaving  only  a  trickle  of  ten  inches  down  the  dry  channel.  It  is 
difficult  to  contend  that  a  substantially  complete  nonriparian  diver- 
sion of  a  stream  against  the  opposition  of  a  riparian  owner  can  be 
upheld  under  any  interpretation  of  the  common  law ;  for,  as  a  gen- 
eral principle,  the  common  law  undoubtedly  confines  use  to  riparian 
lands.  And  there  is  further  the  grave  question  already  mentioned 
of  how  ' '  no  possible  detriment "  is  to  be  proved ;  for  the  burden  of 
proof  would  have  to  be  (as,  indeed,  the  supreme  court  of  California 
has  most  emphatically  held)  upon  the  nonriparian  claimant,  and  is 
not  sustained  where  (as  must  too  often  be  the  case)  the  assertion 
of  "no  possible  detriment"  is  hypothetical  and  open  to  doubt  upon 
the  facts.5 

D.     OTHER  RELATED  MATTERS. 
(3d  ed.) 
§  833.     Declaratory  Decree. — As  between  riparian  proprietors, 

decisions  have  already  been  referred  to6  where,  during  the  com- 
plaining proprietor's  nonuse,  a  peremptory  injunction  was  refused 
even  against  excessive  and  unreasonable  use  by  another  riparian 
owner,  and  instead  a  decree  rendered  declaring  the  complaining  pro- 
prietor's right  of  future  use,  to  prevent  its  loss  by  prescription ;  in 
effect  quieting  title  to  his  right  of  future  use.  In  some  of  the  eases, 
this  was  done  where  the  party  complained  of  was  using  the  water 
on  distant  nonriparian  land,7  and  as  to  percolating  water  this  was 

3  (Cal.  1910),  112  Pac.  182.  7  In  one  case  (Ulbricht  v.  Eufaula 

4  See  the   opening  sections  of  this  Water  Co.,  86  Ala.  587,   11  Am.   St. 
chapter.     Indeed  in  Miller  v.  Madera  Rep,    72,    6    South.    78,    4    L.    R.    A. 
Co.,  155  Cal.  59,  99  Pac.  502,  22  L.  R.  572),    a    riparian    proprietor    filed    a 
A.,   N.   S.,   391,   they  are   said   to  be  bill  to  enjoin  the  diversion  of  water 
explicable    only   if    they    referred    to  from  the  stream  by  an  upper  riparian 
riparian    uses    between    riparian    pro-  proprietor,  a  water  company,  for  the 
prietors.  use  of  its  waterworks  constructed  to 

5  Miller   v.   Bay   Cities  Water   Co.,  supply  the  inhabitants  of  a  city  with 
157  Cal.  256,  107  Pac.  115.  water.     The    testimony    in    the    case 

•    6  Supra,  sec.  802.  established  that  the  diversion  of  wa- 


833 


Ch.  35.     AGAINST  NONRIPARIAN  OWNERS.  •  (3d  ed.)  895 


actually  applied  in  a  recent  California  case,  further  saying  that  it 
is  not  the  law's  policy  to  permit  any  of  the  available  waters  of  the 
country  to  remain  unused,  or  to  allow  one  having  the  natural  ad- 
vantage of  a  situation,  which  gives  him  a  legal  right  to  use  water, 
to  prevent  another  from  using  it  while  he  himself  does  not  desire 
to  do  so.8 

Some  dicta  in  this  line  appear  in  well-known  cases.9 


ter  for  the  purpose  mentioned  would 
result  in  a  sensible  diminution  in  the 
flow  of  the  stream  itself  in  the  dry 
season  or  summer  months,  but  that 
the  complainant  was  making  no  par- 
ticular use  of  the  stream,  and  there- 
fore suffered  no  special  damage  by 
the  act  of  the  defendant;  and  it  was 
held  that,  as  the  defendant  was  tak- 
ing the  water  for  the  purpose  of 
supplying  the  wants  of  a  neighboring 
town,  and  not  returning  it  to  its 
natural  channel,  the  plaintiff  was  en- 
titled to  an  injunction  in  vindication 
of  his  rights,  without  any  special 
proof  of  damages;  but,  as  he  was 
not  making  any  particular  use  of  the 
water,  the  injunction  should  be  so 
framed  as  only  to  restrain  its  use 
"to  the  sensible  injury  or  damage 
of  the  complainant  for  any  purpose 
for  which  he  may  now  or  in  the 
future  have  use  for  it."  In  the  Ore- 
gon case  of  Jones  v.  Conn,  39  Or. 
30,  87  Am.  St.  Rep.  634,  64  Pac. 
855,  65  Pac.  1068,  54  L.  R.  A.  630, 
it  was  held  that  where  plaintiffs,  who 
were  lower  riparian  owners,  sought 
to  restrain  defendant's  use  of  the 
water  of  a  stream  for  irrigating  pur- 
poses, on  the  ground  that  the  land 
.  irrigated  was  nonriparian,  and  de- 
fendant set  up  in  his  answer  an 
absolute  right  to  a  sufficient  amount 
of  water  to  irrigate  his  "land,  plain- 
tiffs, though  not  entitled  to  an  in- 
junction, should  be  awarded  a  decree 
limiting  defendant's  use  to  such  as 
would  not  materially  injure  plain- 
tiffs, in  .order  to  prevent  defendant's 
right  from  ripening  into  an  adverse 
title;  but  permitting  defendant's 
use  until  such  injury  should  arise.  In 
Katz  v.  Walkinshaw,  141  Cal.  116, 
99  Am.  St.  Rep.  35,  70  Pac.  663,  74 
Pac.  766,  64  L.  R.  A.  236,  Judge 
Shaw  states  the  same  principle,  ap- 
plying it  to  percolating  water:  "If 
a  party  makes  no  use  of  the  water 


on  his  own  land  or  elsewhere,  he 
should  not  be  allowed  to  enjoin  its 
use  by  another  who  draws  it  out,  or 
intercepts  it,  or  to  whom  it  may  go 
by  percolation,  although,  perhaps,  he 
may  have  the  right  to  a  decree  set- 
tling his  right  to  use  it  when  neces- 
sary on  his  own  land,  if  a  proper 
case  is  made." 

8  Burr  v.  Maclay  R.  Co.,  154  Cal. 
428,  98  Pac.  260. 

9  In  a  leading  English  case  it. has 
been    said    that   where   a   peremptory 
injunction    is    asked    against  a   non- 
riparian  proprietor   during   plaintiff's 
nonuse,     it     may,     perhaps,     not     be 
granted    where     the     continuance    of 
the    diversion   will    not   ripen    into    a 
right   by    prescription,    as   where    the 
nonriparian  owner  disclaims  to  be  act- 
ing as  of  right,  and  only  intends  to 
use  the  water  at  such  times  when  the 
riparian    proprietor    does    not    use  it. 
Swindon    W.    W.    v.    Wilts    etc.    Co., 
7  H.  of  L.  697.     But  this  has  never 
been  actually  applied  in  the  English 
cases;   it  is  always  held  inapplicable 
upon    the    facts.     See,    for    example, 
Roberts     v.      Gyrfai     Dist.     Council 

(1899),   2   Ch.   608,  Lindley,  L.  J. 

A  similar  tentative  statement  ap- 
pears in  a  decision  of  Justice  Story. 
Webb  v.  Portland  Cement  Co.,  3  Sum. 
189,  Fed.  Cas.  No.  17,322. 

In  a  New  Jersey  case  the  injunc- 
tion against  taking  the  water  for  sale 
to  a  distant  city  was  framed  to  read 
that  defendant  "should  be  enjoined 
from  abstracting  such  quantities  of 
water  from  this  stream  and  at  such 
times  as  will  be  detrimental  to  the 
full  enjoyment  of  the  stream  by  the 
complainants."  Higgins  v.  Fleming- 
ton  W.  Co.,  36  N.  J.  Eq.  538.  See, 
also,  the  decree  in  City  of  Paterson 
v.  East  Jersey  W.  Co.,  74  N.  J.  Eq. 
49,  70  Atl.  472.  In  a  late  Texas  case 
it  was  held  that  a  temporary  injunc- 
tion would  not  lie  during  plaintiff's 


896  (3d  ed.)    Pt.  IV.    THE  COMMON  LAW  OF  EIPAEIAN  EIGHTS.    §  834 

(3d  ed.) 

§  834.  Nonriparian  Use  by  Both  Parties. — As  between  two  ripa- 
rian proprietors  neither  seeking  riparian  use  and  both  using  the 
water  on  nonriparian  lands,  the  lower,  it  has  been  held,  cannot, 
while  so  engaged,  assert  a  riparian  right.10  The  matter  may  pos- 
sibly be  governed  by  the  principle  elsewhere  set  forth,11  that  posses- 
sion will  be  protected  against  one  who  can  show  no  better  right. 
In  other  words,  the  argument  would  be  that  both  have  stepped  out 
of  their  character  as  riparian  owners,  and  neither  can  rely  thereon.12 
"Now,  if  Duckworth  was  at  the  time  actually  diverting  water  from 
the  lake  and  using  it  on  such  other  lands,  not  riparian,  and  the 
defendant  company  was  also  diverting  water  therefrom  for  use  on 
nonriparian  land,  which,  for  the  purposes  of  the  discussion  to  which 
the  passage  from  the  former  opinion  was  devoted,  might  have  been 
the  case  as  between  them,  in  such  a  case  the  law  is  thoroughly  settled 
that  the  one  first  in  time  is  first  in  right."  13 

However,  this  treatment  of  the  question  has  been  denied  by 
formidable  authority.  In  an  important  case  in  the  House  of  Lords 
the  upper  riparian  owner  was  taking  the  water  beyond  the  water- 
shed to  supply  a  city,  while  the  lower  riparian  owner  was  also  tak- 
ing it  to  nonriparian  lands  for  sale,  and  the  lower  owner  was  none 
the  less  granted  an  injunction  against  the  upper,  regardless  of  who 
was  first  in  time,  on  the  ground  that,  even  if  the  plaintiff  below 
stream  also  had  no  right  to  make  such  use,  he  had  at  least  a  right 
against  the  upper  nonriparian  use  to  preserve  the  stream  for  the 
use  of  his  own  land  below  should  he  desire  to  there  use  it  in  the 
future,  and  refusal  of  the  injunction  would  deprive  him  by  prescrip- 
tion of  this  right  of  property,  even  if  he  was  not  now  exercising 
it.14 

nonuse,  because  the  bringing  of  action  ville  W.  Co.,  158  Cal.  206,  110  Pac. 

itself  stops  any  prescription.     Biggs  v.  927     (second    appeal),    as    to   which 

Leffingwell   (Tex.  Civ.  App.),  132  S.  case   see  supra,  sec.    246,    appropria- 

W.  902.  tion  on  private  land. 

10  Vernon  Irr.  Co.  v.  Los  Angeles,  1*  Speaking  of  the  fact  that  plain- 
106  Cal.  243,  39  Pac.  762.     Compare  tiff  was    himself    selling    the  water, 
State   v.   Superior    Court,    46    Wash.  Lord   Hatherly   said:   "But   what   has 
500,  90  Pac.  650.  that  to  do  with  their  position  as  re- 

11  Sees.  246,  625.  gards    the    appellants?     Those    lower 

12  See     Wutchumna      W.      Co.     v.  down   the   stream   than   the   plaintiffs 
Pogue,  151  Cal.,  at  112,  90  Pac.  362.  might   possibly,   if   they   thought    fit, 
See,  also,  Mentone    Irr.    Co.  v.  Bed-  fairly  complain    of    it    as    ultra  the 
lands  Co.    (1909),   155   Cal.   323,  '100  canal  proprietors'  powers,  that  any  of 
Pac.  1082,  22  L.  E.  A.,  N.  S.,  382,  17  the    water,    if    it    were    superfluous, 
Ann.  Cas.  1222.  should   be   diverted   from   the   stream 

13  Concurring  opinion   of  Mr.  Jus-  unnecessarily    and    not    handed    over 
tice   Shaw   in   Duckworth   v.   Watson-  and  passed  on  to  them,  but  it  could 


§  835  Ch.  35.     AGAINST  NONBIPARIAN  OWNERS.     (3d  ed.)  897 

Since  the  lower  riparian  owner  can  have  an  injunction  against 
nonriparian  use  if  not  using  the  water  at  all,  perhaps  there  is  force 
in  the  argument  that  actually  using  it  (no  matter  where)  can  put 
him  in  no  worse  position. 

(3d  ed.) 

§  835.  Conclusions. — Some  conclusions  may  be  drawn  from  the 
foregoing  discussion  of  the  protection  of  the  riparian  right  against 
nonriparian  owners  at  common  law  (which  is  the  law  of  waters 
prevailing  in  California,  excepting  grant,  condemnation  or  prescrip- 
tion or  rights  acquired  while  the  waters  flowed  mainly  upon  the 
public  domain). 

(a)  Generally  speaking,  nonriparian  owners  have  no  rights  in 
streams. 

(b)  A  riparian  owner  may  enjoin  nonriparian  use  although  not 
using  the  water  himself,  and  he  is  not  required  to  show  damage  to 
use;  the  injunction  is  granted  to  prevent  impairment  of  the  ripa- 
rian estate  through  loss  of  supply  for  use  in  the  future. 

(c)  The  riparian  owner  is  limited  to  no  measure  of  reasonable- 
ness based    upon  any    sharing  or    correlative   use  with  the    non- 
riparian  owner  or  nonriparian  use;  he  is  entitled  without  limit  to 
the  full  extent  to  which  the  natural  flow  of  water  does  or  may  in  the 
future  contribute  benefit  to  his  riparian  land,  however    much  he 
might  be  forced  to  forego  some  thereof  in  favor  of  riparian  use  by 
other  riparian  owners.15 

(d)  Storm  flow  is  natural  flow. 

not  infringe  on  the  rights  of  those  in  ing  that  a  lower  riparian  owner  may 
the  upper  part  of  the  stream";  and  have  an  action  against  improper  un- 
also  speaks  of  the  water  being  "dis-  reasonable  irrigation  by  an  upper 
posed  of  in  a  way  which  might  not  owner,  though  the  lower  owner  him- 
be  legitimate  as  regards  the  lower  self  used  the  water  for  irrigation  in 
proprietors,  but  which  the  higher  a  way  that  might  be  improper  as  to 
proprietors  could  have  nothing  to  do  owners  still  farther  down  the  stream, 
with My  Lords,  I  think  enough  As  to  nonriparian  use  by  both  par- 
has  been  made  out  to  justify  the  ties,  Salmond  on  Torts,  page  267, 
interference  of  a  court  of  equity  in  argues  that  the  lower  should  have  a 
this  case."  Swindon  W.  W.  v.  Wilts  right  of  action  against  the  upper, 
etc.  Co.,  7  H.  of  L.  697,  at  712.  Upon  close  analysis,  there  may  be 
(This  case  is  cited  with  approval  in  something  to  the  same  effect  in  Men- 
Gould  v.  Eaton,  117  Cal.  539,  49  Pac.  tone  Irr.  Co.  v.  Redlands  Co.  (1909), 
577,  38  L.  R.  A.  181,  and  by  Mr.  155  Cal.'  232,  and  Arroyo  D.  Co.  v. 
Justice  Shaw  in  Southern  Cal.  etc.  Co.  Baldwin,  155  Cal.  280,  100  Pac.  874. 
v.  Wilshire,  144  Cal.  68,  77  Pac.  767.)  15  Upon  principle  this  is  as  true 
Cf.  Sampson  v.  Hodinott,  1  Com.  B.,  against  a  nonriparian  use  below  as 
N.  S.,  611,  3  Jur.,  N.  S.,  243,  hold-  above. 
Water  Rights — 57 


898  (3d  ed.)    Pt.  IV.    THE  COMMON  LAW  OF  EIPAKIAN  EIGHTS.    §  835 


(e)  Beyond  the  foregoing,  the  latest  California  expression  M  is 
that,  irrespective  of  present  damage  to  present  use,  and  irrespective 
of  "reasonableness,"  the  nonriparian  use  must,  nevertheless,  to  be 
wrongful,  be  such  as  would  be  followed  by  consequential  damage 
to  the  riparian  land  in  case  of  its  continuance.17  This,  if  it  does 
not  follow  as  a  matter  of  law,  would  seem  to  be,  after  all,  a  narrow 
residue. 

The  exclusion  of  nonriparian  owners  is  unsatisfying  in  new 
regions  (and  so  it  is  the  chief  point  upon  which  so  much  has  been 
said  under  the  Colorado  Doctrine,  rejecting  the  common  law  abso- 
lutely, "to  suit  conditions").18  The  exclusion  is  in  the  public  in- 
terest when  a  large  riparian  community  lives  along  the  stream  itself, 
and  as  settlement  advances  upon  the  many  little  streams,  the  opposi- 
tion to  it  will  almost  necessarily  decline,  but  large  projects,  in  Cali- 
fornia, will  be  forced  by  it  to  rely  mainly  upon  grant,  con- 
demnation or  prescription  (arising  where  riparian  owners  do  not 
insist  upon  their  rights),  or  public-land  appropriations,  such  as 
have  been  their  basis  in  the  past.19 


16  San  Joaquin  Co.  v.   Fresno   Co. 
(Cal.),  112  Pac.  182. 

17  Speaking    generally    upon     this 
matter  of  nonriparian  use,  the  actual 
decisions  in  California  tend  to  regard 
any  possible  exception  in  such  direc- 
tion as  without  definite  form  in  the 
California      cases.     It      is     variously 
spoken  of  as  a   question  of  whether 
the  nonriparian  diversion  is  such  that 
"it   will    deprive   the    riparian    owner 
of  its  benefit,"  or  "water  which  is  or 
may  be  beneficial  to  the  land"   (Mil- 
ler v.   Madera   Co.,    155    Cal.    59,    99 
Pac.  502,   22  L.  E.  A.,  N.   S.,   391), 
or  whose  loss  would  cause  consequen- 
tial damage  to  the  land  (San  Joaquin 
Co.  v.  Fresno  Flume  Co.  (Cal.    1910), 
112  Pac.  182)  ;   or  a  diversion  which 
"will    not    perceptibly    diminish    the 
stream   below"    (Anaheim   W.    Co.   v. 
Fuller,   150    Cal.    327,    88  Pae.   978; 
Huffner  v.   Sawday,   153   Cal.   86,   94 
Pac.   424) ;    or   "will   not   appreciably 
affect     or     substantially    injure     the 
riparian   rights."     Miller    v.    Madera 
Co.,  155  Cal.  59,  99  Pac.  502,  22  L.  E. 
A.,  N.  S.,  391.     These  are  three  dif- 
ferent things:  a  diversion  may  appre- 


ciably diminish  the  stream  without 
necessarily  affecting  the  possible 
benefits  to  and  enjoyment  of  the 
land,  or  causing  it  consequential  dam- 
age; and  a  statement  that  a  riparian 
owner's  rights  must  not  be  infringed 
gives  no  aid  in  discovering  wherein 
such  an  infringement  consists. 

18  Supra,  sees.  112,  167  et  seq. 

See,  for  example,  the  strong  up- 
holding of  it  on  thje  ground  of  being 
just  suited  to  conditions  in  the  well- 
settled  Santa  Clara  Valley,  as  set  forth 
by  the  supreme  court  of  California  in 
Miller  v.  Bay  Cities  Co.,  157  Cal. 
256,  107  Pac.  115.  Compare  this 
opinion  with  the  opinion  in  San  Joa- 
quin Co.  v.  Fresno  Flume  Co.  (Cal. 
1910),  112  Pac.  182,  saying  on  the 
other  hand  that,  because  of  condi- 
tions, there  is  no  rule  to  which  the 
court  can  adhere,  but  each  case  will 
be  treated  as  one  of  first  impression. 
See  Young  v.  Hinderlider  (N.  M.), 
110  Pac.  1145,  as  to  how  men  differ 
as  to  what  true  policy  is  in  water 
qases. 

19  Supra,  sec.  112. 


§  836  Ch.  35.     AGAINST  NONRIPARIAN  OWNERS.     (3d  ed.)  899 

(3d  ed.) 

§  836.  Exception  Where  Underground  Water  is  involved. — 
Under  the  recent  California  decisions  concerning  percolating  water, 
where  a  stream  and  ground-water  are  so  intimately  connected  in 
nature  as  to  form  a  single  water  supply,  nonriparian  owners  (for 
use  upon  their  own  lands)  have  been  admitted  to  equal  rights  with 
riparian  owners  on  the  stream.20 

This  matter  is  left  to  chapters  upon  underground  water. 

20  Hudson  v.  Dailey,  156  Cal.  617,  105  Pac.  748;  Miller  r.  Bay  Citie» 
W.  Co.,  157  Cal.  256,  107  Pac.  115. 

§§  837-843.     (Blank  numbers.), 


900  (3d  ed.)    Pt.  IV.    THE  COMMON  LAW  OF  RIPARIAN  EIGHTS.    §  844 


CHAPTER  36. 

CONTRACTS  AND  CONVEYANCES  BY  A  RIPARIAN  PRO- 
PRIETOR.1 

§  844.     General. 

§  845.     Grants  and  contracts  are  binding  between  the  parties  thereto. 
§  846.     Same. 

§  847.     But  as  affecting  noncontracting  riparian  proprietors,  grants  or  con- 
tracts or  sales  of  water  or  of  water-right  are  invalid. 
§  848.     Some   opposing  decisions. 

§  849.     How  far  the  opposing  cases  can  be  supported  upon  principle. 
§  850.     In  the  civil  law. 
§  851.     Conclusions. 
§§  852-860.     (Blank  numbers.) 

(3d  ed.) 

§  844.  General. — Since  the  riparian  owners  do  not  own  the 
corpus  of  water  of  the  stream,  the  only  private  right  therein  being 
a  usufruct,  grants  by  riparian  owners  have  for  their  subject  matter 
the  incorporeal  usufruct,  and  not  the  corporeal  water.2  A  grant 
concerning  water  of  a  lake  extends  to  the  use  of  the  lake  and  not 
merely  to  the  corpus  then  standing  in  the  lake.  "The  claim  of  the 
respondents  that  the  grant  by  Mrs.  -McKinlay  of  the  rights  pertain- 
ing to  the  land  described  in  the  deeds,  extended  only  to  the  water 
then  standing  in  the  lake,  and  that  as  soon  as  that  water  was  ex- 
hausted by  use,  run-off,  or  evaporation,  the  rights  ceased  to  exist, 
is  utterly  baseless,  and  needs  no  discussion  further  than  to  deny 
it. "  3  Upon  the  same  distinction,  a  grant  of  a  right  to  take  water 
out  of  another's  pond  creates  a  profit  a  prendref  a  right  in  re- 
spect of  the  corpus  of  the  water;  but  not  so  of  the  right  to  take 
water  from  his  spring,5  since  the  landowner  owns  the  corpus  of 
water  in  the  pond,  being  then  reduced  to  possession,  but  does  not 
own  a  single  drop  as  such,  of  the  running  water  flowing  in  or  from 
the  spring.8 

1  See,  also,  Chapter  24,  supra,  un-       150  Cal.,    at    532,  89  Pac.  338,  and 
der  the  law  of  appropriation.  concurring  opinion  in  S.  C.  (1910),  158 

2  Kidd   v.   Laird,    15   Cal.    161,   at       Cal.  206,  110  Pac.  927. 

180,  76  Am.  Dec.  472,  4  Morr.  Min.  4  Angell  on  Watercourses,  7th  ed., 

R-ep.  571;  McDonald  v.  Askew,  29  Cal.  p.  245;  Hill  v.  Lord,  48  Me.  83,  die- 

200,  at  207,  1  Morr.  Min.  Rep.   660;  turn. 

Mayor     v.      Commissioners,    7    Barr.  5  Race  v.  Ward,  3  El.  &  Bl.  710. 

(Pa.)   348.  6  Supra,  c.  1  et  seq. 

3  Duckworth    v.     Watsonville     Co., 


§845  Ch.  36.  RIPARIAN  CONTRACTS  AND  CONVEYANCES.    (3d  ed.)  901 

The  riparian  right  passes  without  mention  on  a  sale  of  the  land 
as  part  and  parcel  of  it  unless  expressly  reserved.7 

If  a  landowner  subdivides,  selling  the  upper  half  on  which  the 
stream  rises,  retaining  the  lower  half  through  which  it  flows,  his 
riparian  right  as  to  the  lower  half  remains  unaffected,  not  extinct 
by  unity  of  possession.8  Where  he  sells  part  not  abutting  upon 
the  stream,  reference  is  made  to  other  places.9 

(3d  ed.) 

§  845.  Grants  and  Contracts  are  Binding  Between  the  Parties 
Thereto. — A  grant  or  contract  of  or  concerning  water  between 
riparian  owners  is  binding  upon  them,  their  privies  and  successors. 
The  grant  or  contract  is  binding  upon  the  parties  to  it.10 

Likewise,  between  the  parties,  a  grant  between  a  riparian  and  a 
nonriparian  owner  is  binding  between  them.11  A  riparian  owner 
may  grant  the  land  but  reserve  the  use  of  the  water,  which  will  be 
binding  inter  se.12  Or  he  may  grant  all  his  riparian  right  to  an- 
other, reserving  only  use  for  domestic  purposes.  Where  a  riparian 
proprietor  conveyed  his  rights  to  another,  reserving  only  domestic 
use,  the  grant  was  held  binding  between  the  parties  and  privies^ 
and  the  purchase  by  the  grantor  or  his  successors  of  other  rights 
below  stream  thereafter  is  not  material.13  An  exclusive  or  any 
other  various  use  may  be  given  to  one  party  by  decree  on  a  parti- 
tion of  a  riparian  tract,  which  will  bind  the  parties  to  the  partition 

7  Supra,  sec.  711.  J1  Yocco  v.  Conroy,   104  Cal.  468, 

8  Shury  v.   Piggott,  Poph.   169,  79  38    Pac.    107;    Gould   v.   Stafford,   91 
Eng.     Reprint,     1263;     Worthen     v.  Cal.  146,  27  Pac.  543;  Alhambra  etc. 
White  etc.  Co.,  74  N.  J.  Eq.  647,  70  Co.  v.  Mayberry,  88  Cal.  74,  25  Pac. 
Atl.   471;    City   of   Paterson   v.   East  .1101;   Duckworth  v.  Watsonville   Co., 
Jersey  W.   Co.,  74  N.  J.   Eq.  49,  70  158  Cal.  206,  110  Pac.  927;  Strong  v. 
Atl.  479.  Baldwin,   154  Cal.   150,    129   Am.   St. 

9  Supra,  sec.  769  et  seq;  infra,  sec.  Rep.    149,    97    Pac.    178;    Hudson    v. 
845  et  seq.  Dailey,  156  Cal.  617,  105  Pac.  748. 

10  Painter  v.  Pasadena  etc.  Co.,  91  12  Walker   v.   Lillingston,    137   Cal. 
Cal.    74,    27    Pac.   539;    Outhouse  v.       401,  70  Pac.  282. 

Berry,  42  Or  593,  72  Pac.  584;  Yocco  13  Duckworth  v.  Watsonville  etc. 
v.  Conroy,  104  Cal.  468,  38  Pac.  107;  Co.,  150  Cal.  520,  89  Pac.  338,  say- 
City  of  Salem  v.  Salem  etc.  Co.,  12  ing:  "By  reason  of  its  purchase  of 
Or.  374,  7  Pac.  497;  Gould  v.  Staf-  these  riparian  rights  the  company  pos- 
ford,  91  Cal.  146,  27  Pac.  534;  Nich-  sessed  the  right,  so  far  as  that  land 
ols  v.  New  England  etc.  Co.,  100  and  its  owners  were  concerned,  to  use 
Mich.  230,  59  N.  W.  155 ;  Churchill  v.  the  whole  or  any  part  of  the  waters 
Baumann,  104  Cal.  369,  36  Pac.'  93,  of  the  lake  except  such  as  were  nec- 
38  Pac.  43;  Rose  v.  Mesmer,  142  Cal.  essary  for  domestic  use  and  for  the 
322,  75  Pac.  905;  Fuller  v.  Azuza  watering  of  stock  thereon."  See 
Co.,  138  Cal.  204,  71  Pac.  98;  Wardle  Same  v.  Same,  158  Cal.  206,  110  Pac. 
v.  Brocklehurst,  1  El.  &  El.  1058;  6  927. 
Jur.,  N.  S.,  319,  and  cases,  infra. 


902   (3d  ed.)     Pt.  IV.    THE  COMMON  LAW  OF  RIPARIAN  RIGHTS.     §  845 

and  their  successors  and  privies.14  In  one  case  15  all  the  land  in 
suit  was  a  part  of  an  original  rancho  (ranchito),  through  the  entire 
length  of  which  the  river  has  always  flowed,  and  in  the  segregation 
of  said  rancho  by  deeds  and  partition  decree  among  a  large  number 
of  people,  the  riparian  right  of  the  ranchito  was  apportioned  among 
the  various  subdivisions.  All  the  parties  to  the  suit  being  holders 
unjder  such  deeds  or  former  decrees,  they  were  held  to  the  rights 
so  defined,  which  rights  were  held  to  pass  by  express  mention  in  all 
deeds  subsequent  to  the  original  ones,  even  though  some  of  the 
subdivisions  were  nonriparian  to  the  stream.16  Likewise,  upon 
subdivision  of  a  riparian  tract,  there  may  pass  with  the  subdivided 
portions  (though  nonriparian  after  the  subdivision),  as  against  the 
grantor  and  his  privies  and  successors  in  interest  of  the  other  por- 
tions, water-rights  by  implication  from  circumstances,  as  where 
some  of  the  subdivided  portions  had  previously  been  receiving  water 
and  there  existed,  at  the  time  of  the  subdivision,  ditches  leading 
thereto,  or  other  conditions  indicating  an  intention  that  it  should 
continue  to  have  water,  notwithstanding  its  being  now  severed  from 
the  stream.17  But  these  rulings  were  only  as  between  the  parties, 
their  privies  and  successors.  Where  a  riparian  owner  subdivides 
his  land  and  sells  a  part  of  it  not  abutting  upon  the  stream  (which 
thereby  becomes  ipso  facto,  because  of  natural  situation,  nonri- 
parian), but  includes  a  stipulation  that  the  grantee  may  take  water, 

i*  Verdugo  Canyon  W.  Co.  v.  Ver-  sion  that  a  rule  was  being  laid  down 

dugo    (1908),   152   Cal.   655,   93   Pae.  that  would  bind  other  riparian  owners 

1021 ;   Rose  v.  Mesmer,  142  Cal.  322,  not  parties  or  privies  to  nor  claiming 

75     Pac.     905;     Strong    v.     Baldwin  under    the    original    ranchito    or  its 

(1908),    154    Cal.    150,    129    Am.    St.  deeds  or  partitions.     Such  "stranger" 

Rep.   149,   97    Pac.    178;     Hudson  v.  riparian  owners  were  not  involved  in 

Dailey,   156  Cal.   748,   105   Pac.   748;  the  case;  as  to  them,  as  discussed  in 

Moore  v.   Parker    (1908),   149   N.   C.  the   next   section,   the   expressions   do 

288,  62  S.  E.  1083.  not  apply.     As  between    the    parties 

is  Strong   v.   Baldwin    (1908),   154  and  privies  themselves  alone,  it  mat- 

Cal.  150,  129  Am.  St.  Rep.  149,  97  Pac.  ters  little  what    name    be    given    to 

178.  their    rights;     they   may  bind    them- 

16  The  opinion    is    not    clear  upon  selves  and  their  privies  and  successors 

this  question,-  as  to  grants  purely  be-  in  interest  as  they  please, 
tween  the  parties,  and  the  other  ques-  17  Hudson  v.  Dailey,  156  Cal.  617, 

tion  in  the  next  section,  as  to  grants  105  Pac.  748,    dictum,    holding    that 

against     riparian     owners      strangers  where,   on   a   partition   of  a   riparian 

thereto.     The       opinion       says       the  tract    between    A    and    B,    an    agree- 

grantees     owning     nonriparian     sub-  ment   is   made   concerning  the   water, 

divisions    "are    all    riparian    owners,"  the   successors   of    A    can    claim   the 

and  that  as   to   them  their  right  "is  benefit  thereof  against  the  successors 

still  a  riparian  right,  and  is  in  strict  of  B;  but  it  will  not  affect  the  rights 

technical     language     'parcel     of     the  of    the    successors    of    A    as    between 

land'     conveyed."     Such     expressions  themselves  alone.     (Quaere,  as  to  the 

were  not  intended  to  give  the  impres-  statute   of   frauds.) 


J846  Ch.  36.  RIPAEIAN  CONTRACTS  AND  CONVEYANCES.    (3d  ed.)  903 

such  grant  is  binding  upon  the  grantor,  his  privies  and  succes- 
sors.18 

As  against  himself  or  the  grantor,  the  grantee  may  assign  his 
granted  right  in  gross  separate  from  his  land,  if  expressly  so  in- 
tended.19 

Where,  on  the  sale  of  .his  rights,  the  riparian  owner  reserves  a 
use  for  a  limited  purpose,  such  as  for  a  hydraulic  ram,  the  reserva- 
tion is  not  lost  by  nonuser  for  that  purpose.20 

(3d  ed.) 

§  846.  Same. — With  respect  to  the  reason  upon  which  grants 
are  thus  binding  between  the  parties,  it  is  sometimes  said  that 
a  grant  between  riparian  owners  is  not  a  transfer  of  a  right,  but 
an  extinguishment  thereof,  as  though  it  were  an  easement.21  Sec- 
tion 801,  Civil  Code  of  California,  declares  the  right  to  have  water 
flow  is  a  servitude  on  land,  and  section  811  declares  the  effect 
of  a  grant  in  derogation  of  this  servitude  is  to  extinguish  it.  The 
question  arises  chiefly  in  connection  with  the  statute  of  frauds, 
holding  that  a  parol  license  does  not  grant  anything  within  the 
statute,  but  rather  estops  the  licensor  from  asserting  any  right.22 
But  the  prevailing  view  is  that  the  riparian  right  is  not  an  ease- 
ment or  servitude,  and  the  parol  license  cases  do  not,  on  the  better 
authority,  proceed  upon  such  a  distinction  at  law,  but  rely  upon 
equitable  principles  of  a  different  kind  where  acted  upon  and  ex- 
pense incurred ;  being  irrevocable  in  equity.23 

A  recent  California  case  reasoning  upon  the  ground  of  estoppel 
seems  to  have  given  the  court  much  difficulty.  A  water  company 
organized  to  supply  a  town  from  a  lake  got  deeds  from  most  of  the 
riparian  owners  thereon  for  a  small  riparian  strip  of  land  cutting 
off  their  frontage.  The  grant  from  one  of  the  riparian  owners, 
however,  did  not  convey  such  a  riparian  strip,  but  granted  ' '  all  his 

is  Infra,  sec.  847.     As  to  the  effect  purtenance ; "    rights     obtained     from 

of  expansion  or  contraction  of  ripa-  riparian  owners  by  grant  become  sub- 

rian  boundaries   by   purchase   or   sale  ject    to     the    rules    there    discussed, 

of  parts,,  see  further  the  chapter  upon  rather     than     the     rules     governing 

riparian  land.     Supra,  sec.  765  et  seq.  original  riparian  rights. 

19  Duckworth    v.   Watsonville    Co.,  2°  Walker  v.   Lillingston,   137   Cal. 

158    Cal.     206,     110    Pac.    927.     See  401,  70  Pac.  282. 

Goodrich   v.   Burbank,   12   Allen,  459,  21  See  Lux  v.  Haggin,  69  Cal.  255, 

90   Am.    Dec.    161;    Lonsdale  Co.  v.  293,  10  Pac.  674. 

Moies,   Fed.  Cas.   No.  8496;   Rood  v.  22  Angell  on  Watercourses,  7th  ed., 

Johnson,  26  Vt.  64;  Poull  v.  Mockley,  p.  498. 

33  Wis.  482;   Hill  v.   Shorey,  42  Vt.  23  Supra,  sec.  555,  parol  sale. 
614.     See  supra,  sec.  550  et  seq.,  "ap- 


904  (3d  ed.)    Pt.  IV.    THE  COMMON  LAW  OF  RIPARIAN  RIGHTS.     §  847 

riparian  rights."  Thereafter  defendant,  a  successor  of  this  ripa- 
rian owner,  sought  to  take  water  from  the  lake.  It  was  held  that  a 
grant  of  a  strip  of  land  was  not  needed  to  convey  the  riparian 
right;  and  that  the  defendant  was  estopped  by  the  grant  from 
taking  water  for  use  on  that  riparian  land,  and  this  estoppel  was 
irrespective  of  any  question  of  quantity.  But  the  court  seems  to 
have  thought  that  the  grant  does  not  estop  him  from  using  water 
upon  some  other  land.24 

As  considered  in  another  place,  the  writer  is  inclined  to  think 
that  it  is  not  a  question  of  estoppel,  but  that  the  grant  is  binding 
between  the  parties  to  it  because,  whatever  might  be  the  effect 
thereof  upon  other  riparian  owners  strangers  to  it,  such  question 
can  be  raised  only  by  the  persons  injuriously  affected.  It  allows 
the  grantee,  against  his  grantor,  to  do  acts  which  are  unlawful 
against  the  outstanding  riparian  owners,  who  are  thereby  disseised; 
but  it  is  equivalent  (to  the  amount  granted)  to  an  out-and-out  con- 
veyance of  the  natural  resource — the  flow  and  use  of  the  stream — 
as  between  the  parties.25 

Where  all  the  riparian  rights  on  a  stream  are  dealt  with  together 
in  one  contract,  a  right  similar  in  result  to  a  public-land  appropria- 
tion may  arise,  since  all  who  could  complain  have  contracted  away 
their  rights.  A  severance  of  riparian  rights  by  a  sole  riparian 
proprietor  hence  is  a  close  counterpart  of  a  public-land  appropria- 
tion. An  "appropriation"  is,  on  the  other  hand,  under  the  Cali- 
fornia doctrine,  a  grant  of  water  on  public  land  from  the  United 
States  so  far  as  it  was  in  pioneer  days  a  sole  riparian  proprietor.1 

(3d  ed.) 

§  847.    But  as  Affecting  Noncontracting  Riparian  Proprietors, 

Grants  or  Contracts  or  Sales  of  Water,  or  of  Water-right  are  In- 
valid.— A  riparian  proprietor  has,  in  his  riparian  right,  something 

24  Duckworth    v.    Watsonville    Co.,  right    of    property  is    unaffected    by 
158  Cal.  206,  110  Pac.  927.     Sed  qu.  any   other   interest,   and   his   absolute 
Suppose    I     grant     all     my     riparian  dominion     over     it     is     uncontrolled, 
right   and   before   my   grantee    starts  (Lord   Blantyre  v.   Dunn    (1848),    10 
work  I   divert    the  whole    stream    to  D.  509,  at  p.  529;  Fergusson  v.  Shir- 
nonriparian  land:   Would  not  this  be  reff   (1844),  6  D.   1363,  at  p.   1374.) 
a  clear  fraud  upon  my  grantee?     See  Where   all  the   owners,   if  more   than 
siipra,     sec.     246,     appropriation     on  one,     agree     to     any   dealing   with   a 
private  land.  stream,  no  question  can  arise.     (Fer- 

25  Supra,  sees.  246,  626  et  seq.  gusson  v.  Shirreff,  6  D.,  at  p.  1374)." 
l  Supra,      Part      II.       "Where     a       Fergus.on   on   The  Law   of   Water   in 

stream  rises,  flows,  and  falls  into  the       Scotland,  p.  198. 
sea  within  the  lands  of  one  owner,  his 


§847  Ch.  36.  EIPARIAN  CONTRACTS  AND  CONVEYANCES.    (3d  ed.)  905 

of  value  as  a  part  of  his  land,  which  is  entitled  to  protection  against 
other  riparian  proprietors.  Can  he  sever  this  species  of  property 
from  his  land  and  give  his  nonriparian  grantee  the  same  right  of 
protection  against  other  riparian  owners  in  the  granted  use  as  he 
himself  had? 

The  rule  stated  as  a  general  principle  is,  that  he  cannot,  follow- 
ing the  English  case  of  Stockport  W.  W.  v.  Potter,2  where  a  non- 
riparian  grantee  using  the  water  for  household  consumption  and 
town  water  supply  was  not  allowed  to  recover  damages  from  an 
upper  riparian  owner  who  polluted  the  water  with  chemicals.  The 
rule  against  nonriparian  use  has  been  likened  in  this  respect  to  the 
use  of  a  right  of  pasture  appurtenant  to  land  which  cannot  be 
transferred  for  a  purpose  not  referable  to  the  land  to  which  it  was 
appurtenant.  "The  right  of  a  riparian  owner  to  the  flow  of  water 
may,  in  this  respect,  be  compared  to  a  right  of  common  for  cattle 
levant  and  couchant  upon  land;  this  right  cannot  be  aliened  from 
the  land. "  3  As  laid  down  in  the  Stockport  case :  ' '  It  seems  to  us 
clear  that  the  rights  which  a  riparian  proprietor  has  with  respect 
to  the  water  are  entirely  derived  from  his  possession  of  land  abut- 
ting on  the  river.  If  he  grants  away  any  portion  of  his  land  so 
abutting,  then  the  grantee  becomes  a  riparian  proprietor  and  has 
similar  rights.  But  if  he  grants  away  a  portion  of  his  estate  not 
abutting  on  the  river,  then  clearly  the  grantee  of  the  land  would 
have  no  water  rights  by  virtue  merely  of  his  occupation.  Can 
he  have  them  by  express  grant  ?  It  seems  to  us  that  the  true  answer 
to  this  is  that  he  can  have  them  against  the  grantor  but  not  so  as 
to  sue  other  persons  in  his  own  name  for  an  infringement  of 
them. ' '  4  The  present  English  law  is  clearly  settled  in  support  of 
the  Stockport  case.5  In  the  leading  English  case  the  directors  of 

2  3  Hurl.  &  C.  300.  5  McCartney    v.    Londonderry    etc. 

3  Bowen,  L.  J.,  in  Ormerod  v.  Tod-  Co.      (1904),    L.    E.    App.    Cas.    301, 
morden   Mill   Co.,    11   Q.    B.   D.    172.  House  of  Lords,  per  Lindley,  L.  J.: 
In  Jenks  on  Modern  Land  Law,  page  "The   railroad   company   in   this   case 
166,   the   author   says:   "These   rights  became    riparian    owners    simply    by 
[natural  rights]   are,  in  simple  truth,  buying  a  small  strip  of  land  crossed 
merely     fractions     of     that     complex  by     the    stream.     They     thereby    ac- 
bundle     of     rights     which    we     call  quired      the     water-rights,      whatever 
ownership."     "They    [probably]    can-  they  were,  of  the  owners  of  the  lands 
not     be     severed     from     the  general  so     bought,     but     they     acquired     no 
rights   af    ownership    of    which  they  greater    rights    than    he    could    give 
form  part."     Citing  Stockport  W.  W.  them  in  respect  to  that  land.     These 
v.   Potter,  but    saying    it    is  a  little  rights    did   not   include    the   right    to 
difficult  to  reconcile  this  with  Nuttall  take  water  from  the  stream  for  con- 
v.  Bracewell,  L.  R.  2  Ex.  1.  sumption  off  the  land,  the  possession 

4  Stockport     W.   W.    v.    Potter,     3  of  which  conferred  his* rights." 
Hurl.  &  C.  300,  at  326. 


906  (3d  ed.)    Pt.  IV.    THE  COMMON  LAW  OF  EIPAEIAN  EIGHTS.    §  847 

a  water  company  purchased  a  mill  so  as  to  become  riparian  owners, 
and  used  the  water  not  only  for  the  purposes  and  in  the  manner 
allowed  by  law  to  every  riparian  owner,  but  collected  it  into 
a  permanent  reservoir  for  sale  in  an  adjacent  town,  and  it  was 
held  that  this  was  not  a  use  of  the  stream  such  as  could  justifiably 
be  made  by  an  upper  riparian  owner.6 

Such,  also,  is  the  general  rule  in  American  common-law  jurisdic- 
tions. Water  cannot  be  diverted  from  riparian  owners  (except  by 
grant,  condemnation  or  prescription)  for  sale  as  a  city  water 
supply.7 

The  California  law  has  expressly  followed  the  English  law.  In 
Gould  v.  Eaton,s  it  was  held :  "  It  is  not  necessary  here  to  determine 
the  extent  to  which  such  uses  may  be  carried,  or  the  purposes  to 
which  the  water  may  be  applied.  They  do  not  in  any  case  include 
the  right  as  against  an  inferior  proprietor  to  divert  the  water  to 
nonriparian  lands.  Each  riparian  owner  is  entitled  to  the  natural 
flow  of  the  stream  through  his  land,  with  the  limitation,  however, 
that  the  superior  proprietor  may  take  therefrom  such  an  amount 
as  he  is  entitled  to  for  riparian  purposes.  The  superior  proprietor 
cannot,  however,  divert  to  nonriparian  lands  the  water  which  he 
would  have  a  right  to  use  for  riparian  purposes,  but  which  he 
does  not  in  fact  use.  His  riparian  right  is  appurtenant  to  the  land 
bordering  on  the  stream,  and  does  not  give  him  the  right  to  divert 
the  water  to  lands  which  are  not  riparian  to  the  stream,  and,  as  he 
cannot  exercise  his  right  himself,  he  cannot  as  against  an  inferior 
proprietor,  confer  it  upon  another.  As  against  himself  or  his 
grantee  he  may  contract  for  the  diversion  of  the  water  to  non- 
riparian  lands,9  but  the  rights  of  the  inferior  proprietor  will  not 
be  affected  by  such  contract.  If  he  does  not  in  fact  use  any  of  the 
water  himself,  the  inferior  proprietor  has  a  right  to  the  flow  of  the 

«  Swindon  Waterworks  Co.  v.  Wilts  New  Kochelle  W.   Co.,  91  Hun,  272, 

&  Berks  Canal  Nav.  Co.,  L.  R.  7  H.  36  N.  Y.  Supp.  92;  City  of  Paterson 

L.    697;    affirming    the    judgment    of  v.  East  Jersey  W.  Co.,  74  N.  J.  Ch. 

the  Lords  Justices,  L.  E.  9  Ch.  451.  49,  70  Atl.  472 ;  Saunders  v.  Bluefield 

This  decision  was  followed  in  the  case  W.  W.   Co.    (W.  Va.),  58   Fed.   133; 

of  Owen  v.  Smith   (W.  N.    (Scotch)  Haupt's  Appeal,  125  Pa.  211,  17  Atl. 

1874,   p.    175)    where   the   Master   of  436,  3  L.  E.  A.  536;   Lord  v.  Mead- 

the    Eolls    restrained     a    board     of  ville   W.   Co.,    135   Pa.    122,   20   Am. 

health,    who     were    riparian    owners,  St.  Eep.  864,  19  Atl.   1007,  8  L.   B. 

from  diverting  the  water  of  a  stream  A.  202. 

into   their   reservoir   for   purposes   of  8  117  Cal.  542,  49  Pac.  577,  38  L. 

sale.  E.  A.  181. 

7  A    few    cases    among,   many    are  9  Citing  Gould  v.  Stafford,  91  Cal. 

Parry   v.   Citizens'   W.    Co.,    59    Hun,  146,  27   Pac.   543;    Yocco   v.   Conroy, 

199,  13  N.  Y.  Supp.  471;  Standen  v.  104  Cal.  468,  38  Pac.  107. 


§  847  Ch.  36.  RIPARIAN  CONTRACTS  AND  CONVEYANCES.    (3d  ed.)  907 

entire  stream."10  A  more  recent  California  case  says:  "Further- 
more, his  riparian  right  is  limited  to  his  riparian  land.  It  gave  no 
right  to  use  any  of  the  water  of  the  stream  for  any  purpose,  upon 
land  not  riparian,  nor  upon  any  riparian  land  other  than  his  own. 
No  one  can  sell  or  convey  to  another  that  which  he  does  not  himself 
own.  Grimmer  could  not,  by  a  transfer  of  his  riparian  rights,  sell 
to  the  plaintiff,  as  against  third  persons  having  interests  in  the 
water,  the  right  to  use  the  water  upon  any  land,  riparian  or  non- 
riparian,  except  his  own,  to  which  it  originally  attached.  His  deed 
operated  to  prevent  him  from  complaining  of  a  diversion,  but  it  did 
not  affect  other  parties,"  and  in  the  same  case,  as  to  a  water  com- 
pany which  was  involved,  the  court  said:  "But  the  mere  fact  that 
the  company  is  a  riparian  owner  on  the  lake  gives  it  no  right  what- 
ever to  the  water  of  the  lake,  except  for  actual  beneficial  use  upon 
the  land  to  which  the  riparian  rights  attach. ' '  Ji 

It  is  the  settled  rule  in  California  that  water  cannot,  to  the 
detriment  of  opposing  riparian  owners  (except  by  grant,  con- 
demnation or  prescription  or  by  public  land  appropriation),  be 
taken  from  a  stream  for  sale.  A  late  California  case  very  em- 
phatically holds  that  one  riparian  owner  is  not  entitled  to  divert 
the  waters  of  a  stream  for  use  at  a  distant  city  or  for  commercial 
purposes,  so  as  to  prevent  another  riparian  owner,  to  whom  the 
waters  would  otherwise  be  available,  from  using  them  on  his  lands.12 
One  California  case  13  presented  facts  very  similar  to  the  Stockport 
case,  and,  without  citing  that  case,  reached  the  same  result  on  prin- 
ciple ;  namely,  that  one  taking  water  for  sale  for  nonriparian  city 
supply  cannot  enjoin  pollution  by  an  upper  riparian  owner.14  In 

10  Citing  Stockport  Water  Works  v.  12  Miller  v.  Bay  Cities  W.  Co.,  157 
Potter,  and  Water  Works  Co.  v.  Wilts      Cal.    256,    107    Pac.    115.     See,   also, 
etc.  Canal  Co.,  supra.                                   Logan  v.   Guichard    (Cal.   1911),   114 

There  is  nothing  in  the  case  of  San  Pac.  989. 

Joaquin    Co     v.    Fresno    Flume    Co.  13  p       ]e   gx  Ml    Ricks  et(J    CQ    y> 

(Cal.),    112    Pae.    182,   which  affects  E]k  R    <£  1Q7  Ca]    221    4g  Am    gt 

this  point.  Rep    m    40  Pac.  486. 

11  Duckworth    v.    Watsonville    etc. 

Co.,  150  Cal.  520,  89  Pac.  338.     Note  1*  See,     also,     Stoner     v.     Patten 

the   words   "beneficial   use."     Upon   a  (1909),   132   Ga.   178,   63   S.   E.   897. 

second  appeal  it  was  said  that  where  The   right   of   a   proprietor   to   use   a 

a   riparian    owner   used    forty   inches  due    proportion    of    the    waters    of   a 

of  water  for  nonriparian  town  supply,  stream  upon  which  his  lands  border, 

and  another  riparian  owner  later  took  for    irrigation'  purposes,    cannot    be 

one  hundred  and  forty-two  inches  for  affected  by   the  grant  of  a   right  to 

irrigating   his   riparian   land,   if   this  divert  the  waters  of  the  same  stream, 

were  the  whole  case,  the  former  could  made     by     an     adjacent     proprietor, 

have   no    relief.     Duckworth   v.   Wat-  Anaheim    Water    Co.    v.    Semi-Tropic 

sonville  Co.,   158   Cal.  206,   110   Pae.  Water  Co.,  64  Cal.  185,  30  Pac.  623. 
927. 


908   (3d  ed.)    Pt.  IV.    THE  COMMON  LAW  OP  BIPAEIAN  EIGHTS.     §  847 

other  California  cases  it  is  held:  "A  riparian  owner  may  not  au- 
thorize, as  against  a  lower  proprietor,  a  company  to  take  water 
from  the  stream,  to  be  conducted  to  a  distance  and  sold."  15  And: 
"From  what  has  been  said,  it  is  not  to  be  understood  that  defendant 
has  a  right,  as  against  riparian  owners  farther  down  the  stream, 
to  divert  water  from  the  river  for  the  purposes  of  sale  or  for  use 
on  lands  which  are  not  riparian."16  And:  "In  exercising  this 
riparian  right  the  defendants  have  no  right  to  carry  any  of  the 
waters  of  the  Los  Angeles  River  off  their  riparian  land  for 
use'  on  land  not  riparian,  nor  can  they  sell  it  for  use  on  land  not 
riparian ;  and  all  surplus  waters  must  be  turned  back  into  the 
stream. " 17  So  it  is  held  in  California  that  a  riparian  owner  as 
such  cannot  rightfully  sell  or  divert  to  nonriparian  land,  to  the 
detriment  of  the  riparian  estate  of  any  other  riparian  owner  oppos- 
ing, water  which  he  has  a  right  to  use  upon  his  riparian  land  but 
which  he  does  not  so  use.18 

That,  as  a  general  rule,  diversions  of  water  for  sale  cannot  be 
made  to  the  detriment  of  the  riparian  estate  of  any  opposing,  non- 
contracting,  riparian  owner,  must  necessarily  follow  upon  principle 
from  the  rule  that  one  proprietor  can  excuse  such  detriment  to 
another  only  on  the  ground  of  his  own  riparian  land  from  owner- 
ship of  which  his  right  arises;  and  it  is  the  rule  supported  by 
innumerable  decisions.19 

15  Heilbron   v.    Canal   Co.,    75   Cal.  California. — Anaheim     W.     Co.     v. 
426,  7  Am.  St.  Eep.  183,  17  Pac.  535.  Semi-Tropic  Co.,  64  Cal.  185,  30  Pac. 

16  Heilbron  v.  L.  &  W.  Co..  80  Cal.  6235  Lux  v-  Haggin,  69  Cal.  255,  10 
194   22  Pae   62  Pac.  674;    Heilbron  v.  Canal  Co.,   75 

,',''.        ,  „  Cal.    426,    7    Am.    St.    Eep.    183,    17 

"  ,  ^ 9?  ^°7Spange^  V"  P°mer0y'  Pac.  535  Heilbron  v.  L.  &  W/Co., 
124  Cal.  621,  57  Pac.  585.  8Q  Cal  ^  194>  oo  Pac.  62;  pe0ple 

18  Heilbron   v.   Canal   Co.,    75    Cal.  ex   rel.   Eicks   etc.    Co.   v.    Elk  Hiver 
426,  7  Am.  St.  Eep.  183,  17  Pac.  535;  Co.,   107   Cal.   221,   48   Am.   St.   Eep. 
Chauvet  v.  Hill,  93  Cal.  407,  28  Pac.  125,    40    Pac.    531;    Boehmer    v.    Big 
1066;   Gould  v.  Eaton,  117  Cal.  539,  Rock  Co.,  117  Cal.   19,  48   Pac.  908; 
49  Pac.  577,  38  L.  E.  A.  181;  Bath-  Gould  v.  Eaton,  117  Cal.  539,  49  Pac. 
gate  v.  Irvine,  126  Cal.  135,   77  Am.  577;  33  L.  E.  A.  181;  Los  Angeles  v. 
St.  Eep.  158,  58  Pac.  442;   Cohen  v.  Pomeroy,    124    Cal.    at    621,    57    Pac. 
La  Canada  W.  Co.,  142  Cal.  437,  76  535 ;  Bathgate  v.  Irvine,  126  Cal.  135, 
Pac.  47.  77   Am.   St.   Eep.   158,   58   Pac.    142; 

19  The     cases     already     considered,  Cohen  v.  La  Canada  W.  Co.,  142  Cal. 
together  with   a   few  others,  are  col-  437,    76    Pac.    47;    Montecito    Co.    v. 
lected  here.     The  list  is  far  from  com-  Santa  Barbara,  144  Cal.  578,  77  Pac. 
plete.     (See,      also,      sec.      766,      use  1113;      Montecito      Co.      v.      Santa 
confined  to  riparian  land;  sec.  815  et  Barbara,     151     Cal.     377,     90     Pac. 
seq.,    supra,    protection    of    riparian  935;    Duckworth   v.    Watsonville    Co., 
right;    sec.    1123,    infra,    percolating  150  Cal.  520,  89  Pac.  338;  Duckworth 
water.)  v.  Watsonville  Co.,  158  Cal.  206,  110 


§848  Ch.  36.  KIPARIAN  CONTRACTS  AND  CONVEYANCES.    (3d  ed.)  909 


(3d  ed.) 

§  848.  Some  Opposing  Decisions. — There  have  been  English 
decisions  to  the  contrary  (since  overruled),20  and  it  has  been  said 
that  the  American  rule  is  contrary  to  the  English  rule.21  In  parts 
of  New  England  the  rule  is  clearly  departed  from,22  and  there  have 
been  rulings  in  other  jurisdictions  leaving  some  room  for  discus- 
sion.23 Likewise  in  California  there  are  some  opposing  decisions 
considered  in  the  previous  chapter.  Consequently,  there  is  some 


Pac.   927;    Miller  v.  Bay   Cities   Co., 
157  Cal.  256,  107  Pac.  115. 

Colorado. — Broadmoor  etc.  Co.  v. 
Brookside  etc.  Co.,  24  Colo.  541,  52 
Pac.  792.  . 

Nebraska. — Crawford  Co.  v.  Hatha- 
way, 67  Neb.  325;  108  Am.  St.  Rep. 
647,  93  N.  W.  781,  60  L.  R.  A.  889. 

New  Jersey. — McCarter  v.  Hudson 
W.  Co.,  70  N.  J.  Eq.  695,  118  Am. 
St.  Rep.  754,  65  Atl.  489,  14  L.  R.  A., 
N.  S.,  197,  10  Ann.  Cas.  116;  City  of 
Paterson  v.  East  Jersey  W.  Co.,  74 
N.  J.  Eq.  49,  70  Atl.  472. 

New  York. — Parry  v.  Citizens 
W.  Co.,  59  Hun,  199,  13  N.  Y.  Supp. 
471 ;  Standen  v.  New  Rochelle  Co.,  91 
Hun,  272,  36  N.  Y.  Supp.  92. 

West  Virginia. — Saunders  v.  Blue- 
field  W.  Co.  (W.  Va.),  58  Fed.  133. 

England.— Stockport  W.  W.  v.  Pot- 
ter, 3  Hurl.  &  C.  300;  Omerod  v.  Tod- 
morden  Co.,  11  Q.  B.  D.  172;  Swindon 
W.  W.  v.  Wilts  &  Burks  etc.  Co.,  7. 
H.  L.  697;  McCartney  v.  London- 
derry etc.  Ry.  (1904),  L.  R.  App.  Cas. 
301. 

20  Below    cited.     They    were    over- 
ruled by  those  cited  above. 

21  "In  England  the  right  of  a  non- 
riparian   proprietor,   who   by  contract 
or    license    claims    the    privilege    of 
withdrawing    water    from    a    stream, 
has   not    been    sustained    as   against 
upper      or      lower      proprietors      not 
parties  to  the  contract.     In  this  coun- 
try his  contract  rights  have  been  pro- 
tected."    Note  by  Mr.  Justice  Oliver 
Wendell    Holmes    to    3    Kent's    Com- 
mentaries, 14th  ed.,  p.  689.     (Citing 
inter  alia  the  Modoc  case  in  Califor- 
nia.)    In  another  authority,  24  Am. 
&  Eng.  Ency.  of  Law,  982,  the  words 
"English"   and   "American"   are   used 
as    designating    the    rules    upon    the 
point. 

22  See  recent  cases  in  New  Hamp- 
shire and  Vermont  below  cited.    There 
is   something   to   the   same   effect   in 


the  Massachusetts  case  below  cited, 
but  later  Massachusetts  cases  have  a 
contrary  tendency.  The  Massachu- 
setts case  cited  upheld  the  nonri- 
parian  grant  if  the  complaining  ri- 
parian owner  is  not  caused  damage 
"by  diminishing  the  value  of  Ms 
land." 

23  In  Indiana,  a  nonriparian  grantee 
of  a  riparian  owner  has  been  allowed 
to  recover  damages  from  a  lower  pro- 
prietor who  backed  water  upon  his 
mill.  Bristol  etc.  Co.  v.  Boyer,  67 
Ind.  236. 

In  New  Jersey,  Doremus  v.  City  of 
Paterson,  63  N.  J.  Eq.  605,  52  Atl. 
1107,  held  that  a  grantee  of  a  ri- 
parian proprietor  had  a  right  which 
a  city  owning  riparian  land  above 
could  not  destroy  by  pollution  without 
condemning  and  paying  damages,  dis- 
approving Stockport  case  (being 
almost  identical  on  facts).  On  ap- 
peal, in  65  N.  J.  Eq.  711,  55  Atl. 
304,  this  was  reversed,  holding  the 
grantee's  right  subordinate  to  that  of 
the  city  to  vent  sewage  into  the 
stream,  expressly  following  the  Stock- 
port  case.  Nevertheless  the  later  case 
recognizes  that  the  grantee  had  some 
right,  which  was  conceded  to  be  a 
property  right;  also  explaining  Butler 
Rubber  Co.  v.  Newmark,  61  N.  J. 
L.  32,  40  Atl.  224,  which  held  that  a 
nonriparian  grantee  has  a  right 
which  cannot  be  taken  from  him  with- 
out compensation  by  another  non- 
riparian  owner  above.  In  Doremus  v. 
City  of  Paterson,  70  N.  J.  Eq.  296, 
62  Atl.  3,  and  Same  v.  Same,  70'  N. 
J.  Eq.  789,  71  Atl.  1134,  the  court 
of  errors  and  appeals  finally  rested 
the  decision  upon  the  same  lines  as 
the  English  cases.  In  a.  later  New 
Jersey  case  it  was  held  that  a  ri- 
parian owner  may  retain  the  riparian 
land  but  grant  rights  in  the  water 
"which,  as  against  upper  riparian 
owners,  are  effective  only  to  the  ex- 


910  (3d  ed.)    Pt.  IV.    THE  COMMON  LAW  OF  RIPARIAN  EIGHTS.    §  849 


authority  to  the  effect  that  a  riparian  owner  may  pass  some  right 
to  a  nonriparian  owner  or  nonriparian  use,  enforceable  against  other 
riparian  owners.  These  authorities  are  collected  in  the  note.  As 
they  constitute  a  complete  list  of  all  that  the  writer  could  find 
after  considerable  search  (while  the  decisions  opposing  them  are 
innumerable),  it  will  be  seen  that  they  form  a  very  small  minority.24 

(3d  ed.) 

§  849.  How  Far  the  Opposing  Cases  can  be  Supported  upon 
Principle. — So  far  as  these  cases  relied  (as  to  some  extent  they 
did)  upon  a  contention  that  the  facts  showed  the  nonriparian 
grantee's  use  to  be  a  "reasonable  use,"  they  are  opposed  to  the 
weight  of  authority,  and  cannot  be  sustained,  either,  upon  prin- 
ciple; and  since  the  recent  decision  in  Miller  v.  Madera  Co.25  are 


tent  that  their  exercise  comes  within 
the  limits  of  the  natural  riparian 
rights  of  the  lower  owner."  Such  a 
grant  to  a  city  gives  it  no  right  to 
divert  the  water,  but  gives  it  the 
same  right  as  its  riparian  grantor 
had  to  restrain  a  diversion  by  an 
upper  riparian  owner.  (The  city  had 
near-by  lands  laid  out  as  a  park,  and 
the  proximity  of  the  river  was  im- 
portant to  the  park.)  City  of  Pater- 
son  v.  East  Jersey  W.  Co.,  74  N.  J. 
Eq.  49,  70  Atl.  480. 

24  England. — Nuttall  v.  Bracewell, 
L.  K.  2  Ex.  1;  Kensit  v.  Great  East- 
ern Ry.,  27  Ch.  D.  122,  quoted  supra, 
sec.  823;  Earl  of  Sandwich  v.  Great 
Northern  By.,  10  Ch.  D.  707.  The 
last,  however,  was  expressly  over- 
ruled in  McCartney  v.  Londonderry 
Ry.,  quoted  in  the  preceding  section; 
and  if  the  English  decisions  still 
have  any  force  in  this  direction,  it 
is  very  limited. 

California. — Arrovo  D.  Co.  v.  Bald- 
win (1909),  155  Cal.  280,  100  Pac. 
874,  and  see  cases  cited  supra,  sec. 
822  et  seq. 

Indiana. — Bristol  etc.  Co.  v.  Boyer, 
67  Ind.  236. 

Massachusetts. — Elliott  v.  Fitch- 
burg  Ry.,  10  Cush.  191,  57  Am.  Dee. 
85.  But  in  this  matter  the  later 
Massachusetts  cases  have  a  contrary 
tendency. 

Michigan. — Hall  v.  City  of  Ionia, 
38  Mich.  493. 

Minnesota. — St.  Anthony  Co.  v. 
City  of  Minneapolis.  41  Minn.  270, 
43  N.  W.  56. 


New  Hampshire.- — Gillis  v.  Chase, 
67  N.  H.  161,  68  Am.  St.  Rep.  645, 
31  Atl.  18;  Jones  v.  Aqueduct,  62  N. 
H.  488. 

New  Jersey. — See  cases  in  preced- 
ing note. 

Oregon. — "Riparian  rights  may  be- 
come the  subject  of  a  grant  or  dedica- 
tion, and  may  be  severed  from  the 
soil."  Coquille  Mill  etc.  Co.  v.  John- 
son, 52  Or.  547,  132  Am.  St.  Rep.  716, 
98  Pac.  132 ;  Montgomery  v.  Shaver,  40 
Or.  244,  66  Pac.  923;  Hough  v.  Por- 
ter, 51  Or.  318,  95  Pac.  732,  98  Pac. 
1083,  102  Pac.  728.  Cf.  Jones  v. 
Conn,  39  Or.  30,  87  Am.  St.  Rep.  634, 
64  Pac.  855,  65  Pae.  1068,  54  L.  R.  A. 
630. 

Pennsylvania. — City  of  Reading  v. 
Althouse,  93  Pa.  400. 

Khode  Island. — Matteson  v.  Wilbur, 
11  R.  I.  545. 

Vermont. — Lawrie  v.  Silsby  (1904), 
76  Vt.  240,  104  Am.  St.  Rep.  927, 
56  Atl.  1106;  Same  v.  Same  (1909), 
82  Vt.  505,  74  Atl.  94;  Percival  v. 
Williams,  82  Vt.  531,  74  Atl.  321. 

Miscellaneous. — 24  Am.  &  Eng. 
Ency.  of  Law,  982;  note  by  Justice 
Oliver  Wendell  Holmes  to  3  Kent's 
Commentaries,  14th  ed.,  p.  689; 
Decker  v.  Pac.  etc.  Co.  (Alaska),  164 
Fed.  977;  note  in  40  L.  R.  A.  393. 

Some  of  these  cases  are  positive 
upon  the  point  under  consideration, 
but  most  of  them  show  confusion, 
citing  cases  decided  only  between 
parties  or  privies  to  the  contract  it- 
self. 

25  155  Cal.  59,  99  Pac.  502,  22  L. 
R,  A.,  N.  S.,  391. 


§  850  Ch.  36.   RIPARIAN  CONTRACTS  AND  CONVEYANCES.    (3d  ed.)  911 

not  authority  in  California.  But  whether,  by  confining  the  deci- 
sion to  the  parties  litigant,  there  may,  while  casting  out  all  thought 
of  "reasonableness,"  nevertheless  be  some  principle  to  support  them 
in  extreme  cases — this  is  a  question  so  closely  involved  with  the 
previous  chapter  that  the  reader  is  referred  there  for  further  dis- 
cussion.1 

(3d  e<J.) 

§  850.  In  the  Civil  Law. — Some  interest  may  be  taken  by  the 
reader  in  the  civil-law  authorities  quoted  in  a  later  chapter  upon 
this  matter.  As  a  general  statement  their  rule  is  the  same  as  the 
common-law  rule ;  grants  are  invalid  as  to  noncontracting  riparian 
owners.  Nevertheless  some  expressions  exist  to  the  contrary  in  the 
civil  law  also,  which  shows  that  the  matter  has  given  rise  to  the 
same  differences  in  the  civil  law  as  in  the  common  law,  and  that 
it  is  a  question  of  inherent  difficulty.2 

(3d  ed.) 

§  851.  Conclusions. — (a)  A  riparian  owner  may  contract 
with  other  riparian  owners  or  with  nonriparian  owners  as  he  sees 
fit,  which  will  bind  himself,  his  privies  and  successors'. 

(b)  He  can  make  no  contract  which  will  abridge  any  right  of 
any    noncontracting    riparian    owner  and    be  valid    against  such 
owner;  which,  as  a  general  rule,    prevents  any    contract  by  one 
riparian  owner  being  valid    against  any    noncontracting  riparian 
owner. 

(c)  If  there  is  any  exception,  it  depends  upon  the  same  con- 
siderations as  those  set  forth  in  the  two  preceding  chapters  regard- 
ing nonriparian  use  or  excessive  riparian  use. 

i  We  there  concluded  that  the  pro-  damage,  and  perhaps  disappears  also 
hibition  of  nonriparian  use  arises  in  the  extreme  case  upon  large 
out  of  two  considerations:  (a)  that  streams  where  it  is  shown  (the  non- 
nonriparian  owners  have  no  access  to  riparian,  use  having  the  burden  of 
the  water;  and  (b)  that  the  riparian  proof)  that  no  damage  to  complain- 
owner  (who  has  access)  can  excuse  ant's  capacity  of  use  of  his  land  at 
damage  to  the  land  of  a  neighbor  any  time,  or  to  its  value  or  enjoy- 
only  by  the  reasonable  use  of  his  ment,  can  possibly  (even  in  the 
own  (the  riparian)  land.  Applying  future)  accrue.  The  question  arises, 
these  principles,  a  grant  of  access  to  however,  whether  this  is  not  simply 
another  removed  the  first  ground  of  a  roundabout  definition  of  the  rule 
the  prohibition.  The  second  ground  "de  minimis  non  curat  lex." 
(reasonable  use  of  the  riparian  land  "  Infra,  sec.  1027,  under  the  civil 
through  which  the  right  is  derived)  law. 
is  material  only  in  excuse  of  possible 

§§  852-860.     (Blank  numbers). 


912  (3d  ed.)    Ft.  IV.    THE  COMMON  LAW  OF  RIPARIAN  RIGHTS.    §  861 


CHAPTER  37. 

LOSS  OF  RIPARIAN  RIGHT. 

A.     ABANDONMENT    AND    ADVERSE    USE.— AVULSION. 

§  861.     No  abandonment. 
§  862.     Avulsion. 
§  863.     Adverse  use. 

B.     EMINENT  DOMAIN. 
§  864.     Riparian  right  may  be  condemned. 
§  865.     Clark  v.  Nash. 
§  866.     Procedure  on  eminent  domain. 
§§  867-879.     (Blank  numbers.) 

A.     ABANDONMENT  AND  ADVERSE  USE— AVULSION. 

(3d  ed.) 

§  861.  No  Abandonment. — Riparian  rights  cannot  be  lost  by 
abandonment,  wherein  they  differ  in  an  essential  element  from  ap- 
propriations. The  latter  depend  on  continued  beneficial  use;  but 
in  the  riparian  right,  future  possible  use  stands  as  high  as  actual 
present  use.  Riparian  rights  remain  both  against  other  riparian 
owners  and  against  nonriparian  owners,  though  the  water  is  put 
to  no  use  at  all.1 

The  fact  that  a  riparian  owner  does  not  use  the  water,  not  only 
gives  nonriparian  owners  no  rights,  but  does  not  even  enlarge  the 
rights  of  other  riparian  owners  against  him;  for  the  riparian  right 
is  primarily  to  the  use  of  one's  own  land,  and  a  failure  to  make 
such  use  does  not  affect  the  right  to  use  the  land  when  desired; 
just  as  the  failure  for  a  long  time  to  build  a  house  on  the  land 
does  not,  of  itself,  deprive  the  owner  of  the  right  to  build  one  when 

1  Hargrave  v.  Cook,  108  Cal.  72,  fornia  doctrine.  Hudson  v.  Dailey, 
41  Pac.  18,  30  L.  R,  A.  390;  Lux  v.  156  Cal.  617,  105  Pac.  748  (thirty 
Haggin,  69  Cal.  255,  10  Pac.  674;  years'  nonuse  not  cause  loss  of  ri- 
Bathgate  v.  Irvine,  126  Cal.  140,  77  parian  right).  "Le  droit  d'usage  con- 
Am.  St.  Rep.  158,  58  Pac.  442;  Cave  cede  par  1'art  644  [Code  Napoleon, 
v.  Tyler,  133  Cal.  568,  65  Pac.  1089;  affirmative  of  riparian  rights]  .... 
Duckworth  v.  Watsonville  etc.  Co.,  ne  se  perd  pas  par  le  nonusage,"  but 
150  Cal.  520,  89  Pac.  336;  New  York  may  be  lost  by  prescription.  Droit 
etc.  Co.  v.  Rothery,  132  N.  Y.  293,  28  Civile  Francais,  by  Aubrey  &  Rau, 
Am.  St.  Rep.  575,  30  N.  E.  841;  4th  ed.,  vol.  III.,  p.  52.  Likewise 
Corning  v.  Troy  Iron  etc.  Factory,  40  the  Spanish  law  in  Eschriche, 
N.  Y.  191.  See,  also,  cases  cited  "Aguas,"  sec.  1. 
supra,  sec.  117,  in  support  of  the  Cali- 


§  861  Ch.  37.     LOSS  OF  RIPARIAN  RIGHT.  (3d  ed.)  913 

he  sees  fit.2  Should  a  nonriparian  owner  divert  the  water  above 
the  riparian  owner,  the  nonriparian  owner  will  be  enjoined  so  far 
as  the  water  is  or  may  be  beneficial  to  the  riparian  land,  though 
the  riparian  owner  is  not  himself  using  it;3  and  should  the  non- 
riparian  owner  be  diverting  the  water  below  the  riparian  owner 
who  is  not  using  it,  the  nonriparian  owner  cannot  complain  when 
the  riparian  owner  above  takes  it  from  him  thereafter  for  his  own 
use  upon  his  own  land.4 

Nonuse  does  not  affect  the  riparian  right.  The  rule  of  the  com- 
mon law  as  stated  in  the  frequently  quoted  passage  from  Creswell, 
J.,  in  Sampson  v.  Hoddinott,5  is:  "All  persons  having  land  upon 
a  flowing  stream  have,  by  nature,  certain  rights  to  the  use  of  the 
stream,  whether  they  exercise  them  or  not,  and  they  may  begin 
to  exercise  them  whenever  they  will."6  Another  case  says:  "Use 
does  not  create  the  right,  and  disuse  cannot  destroy  or  suspend  it."  7 
The  Washington  court  has,  however,  said  in  this  connection:8  "It 
is  not  to  the  State's  interest  that  the  water  of  a  non-navigable 
stream  should  be  idle  or  going  to  waste  because  one  of  its  citizens 
having  a  preference  right  to  its  use,  unjustifiably  neglects  to  avail 
himself  thereof,  while  others  stand  ready  and  willing,  if  permitted, 
to  apply  it  to  the  irrigation  of  their  arid  lands."9  This  fear  of 
the  rule  permitting  the  nonuse  is  well  justified  in  new  regions,  but 
becomes  less  as  the  riparian  lands  are  well  settled  up,  for  to  that 
may  be  applied  what  Judge  Henshaw  said  (speaking  of  percolating 
water)  : 10  "For  it  is  not  to  be  supposed  that  with  an  abundance  of 
water  ....  if  the  soil  itself  was  fit  for  cultivation  those  waters 

2  Tenney   v.   Miners'    Ditch   Co.,    7  them  open  and  subject  to  a  rightful 
Cal.  339,  340,  11  Morr.  Min.  Rep.  31.  appropriation   by  anyone  else."     Lux 

3  Supra,  sec.  815  et  seq.  v.   Haggin,  4  Pac.  919,  at  922    (not 

4  Supra,    note    1.     See,    also,    Red-  officially  reported). 

water  Co.  v.  Reed  (S   D.),  128  N   W.  .  gtate    ex   „,     Libeft      Lake   et 

702;   Same  v.  Jones   (S.  D.),  130  N.       CQ    y    Superior  Courtj  4/Wash.  310, 

".      SO.  Q1       p  QflO 

5  1   Com.   B.,   N.   S.,   590,   3   Jur., 

N    g    243                                             -  9  9f-   Smith  v.   Hawkins,   110   Cal. 

'«  Accord  Weiss  v.  Oregon  etc.  Co.,  122>  in  another  connection,  calling  any 

13  Or.  496,  11  Pac.  255;  Gray  v.  Ft.  rule  permitting  nonuse  "a  mischievous 

Plain,   105   App.   Div.   215,  94  N.  Y.  perpetuity."     As  to  percolating  water, 

Supp.    698;    Rogers    v.    Overacker,    4  ***a  B"rV  ^lay  E'79°-'  I54' Cal. 

Cal    App.  333,  87  Pac.  1107.  428;  98  Pac-  260>  speaking  the  same 

7  Lux  v.  Haggin,  69  Cal.  255,  390,  way_,  but  voluntarily  as  a  new  matter 

10  Pac.  674.     "It  probably  never  oc-  deciding   in   favor   of   the   landowner 

curred  to  anyone  that  the  owners,  by  who  was  not  using  the  water- 

neglecting  to  appropriate  the  grasses  ™  In  Newport  v.   Temescal  etc.  Co., 

and  trees  naturally  growing  on  such  149  Cal.  531,  87  Pac.  372,  6  L.  R.  A., 

lands    to    some    useful    purpose,    left  N.  S.,  1098. 
Water  Bights — 58 


914  (3d  ed.)    Pt.  IV.    THE  COMMON  LAW  OF  RIPARIAN  RIGHTS.    §  861 

would  not  long  since  have  been  used  to  transform  the  desert  of 
Ferris  valley  into  a  fruitful  garden."  That  is,  upon  the  well-set- 
tled streams,  self-interest  will  induce  the  fullest  use  of  all  the  water 
by  the  riparian  owners  themselves ;  and  when  that  stage  is  reached, 
the  advantage  of  the  limitation  to  the  ' '  reasonable  use  of  one 's  own 
land"  outweighs  the  disadvantage  of  having  to  wait  for  full  settle- 
ment to  secure  the  benefits  of  the  system  to  the  public. 

In  adjusting  rights  between  riparian  owners  themselves,  the 
riparian  owner  must  be  left  enough  for  reasonable  riparian  use, 
though  no  evidence  of  an  intent  to  make  such  use  appears.11 

Not  only  is  nonuse  no  abandonment,  but  nonuse  raises  no  es- 
toppel in  the  absence  of  additional  matter  showing  active  miscon- 
duct as  discussed  heretofore  on  the  question  of  estoppel.12  The 
magnitude  of  a  hostile  investment  is  not  properly  enough  per  se 
to  raise  an  estoppel.  "Before  locating  the  plant  the  owners  were 
bound  to  know  that  every  riparian  proprietor  is  entitled  to  have 
the  waters  of  the  stream  that  washes  his  land  come  to  it  without 
obstruction,  diversion  or  corruption,  subject  only  to  the  reasonable 
use  of  the  water  by  those  similarly  entitled  ....  and  to  determine 
for  themselves,  and  at  their  own  peril,  whether  they  should  be  able 
to  conduct  their  business  upon  a  stream  of  the  size  and  character 
of  Brandywine  Creek  without  injury  to  their  neighbors;  and  the 
magnitude  of  their  investment,  and  their  freedom  from  malice 
furnish  no  reason  why  they  should  escape  the  consequences  of  their 
own  folly."13 

After  water  passes  the  lands  of  a  riparian  proprietor,  so  long  as 
it  is  not  thrown  back  upon  him,  nothing  which  can  be  done  to  or 
with  it  would  bind  him  or  require  action  on  his  part.  It  is  true 
that  lower  down  the  stream  some  person,  either  as  appropriator 
or  a  lower  riparian  proprietor,  may  use  and  claim  to  be  entitled 
to  the  whole  of  the  water,  but  nothing  that  can  be  done  with  it  by 
another  afterward  can  prejudice  the  upper  proprietor.  His  inac- 
tion does  not  create  any  inference  that  he  intends  to  abandon 
any  right  he  may  have,  nor  is  it  regarded  as  an  encouragement 
to  the  appropriator  or  user  to  proceed  in  his  course  or  to  make 
the  expenditures  which  it  may  necessitate.  It,  therefore,  does  not 

11  Wiggins  v.  Muscupiabe  etc.  Co.,  Ind.  394,  57  N.  E.  719,  56  L.  B.  A. 
113  Gal.  194,  54  Am.  St.  Rep.  337,  45  899,  granting  injunction  against  pol- 
Pac.  160,  32  L.  R.  A.  667.  lution.     Concerning   estoppel,   see   the 

12  Supra,  sees.  593,  594.  discussion  under  the  law  of  appropria- 

13  Weston  Paper  Co.  v.  Pope,  155  tion,  supra,  sees.  593,  616,  651. 


§  862  Oh.  37.     LOSS  OF  RIPARIAN  RIGHT.  (3d  ed.)  915 

give  any  right  either  by  prescription  or  estoppel  which  will  pre- 
vent the  upper  proprietor,  whenever  he  sees  proper,  from  making 
such  use  of  the  water  while  on  his  land  as  he  would  be  entitled 
to  had  no  use  ever  been  made  of  it  at  some  point  farther  down  the 
stream.14 

In  some  Nebraska  cases  the  court  has  greatly  weakened  upon 
this  rule.15  But  the  point  chiefly  involved  in  those  cases  was  one 
of  eminent  domain,  in  which  connection  they  are  already  considered. 
The  doctrine  that  the  riparian  right  is  not  affected  by  nonuse  is 
modified  also  in  Washington  in  regard  to  eminent  domain  pro- 
ceedings.16 

(3d  ed.) 

§  862.  Avulsion.17 — The  right  may  be  lost  by  a  natural  change 
in  the  channel,  making  the  stream  flow  elsewhere ;  the  riparian  pro- 
prietor has  no  right  to  ditch  it  back.18  If  the  change  is  sudden 
instead  of  gradual,  it  is  known  as  ' '  avulsion. " 19  In  case  of  such 
sudden  change  it  has  been  held,  however,  that  the  riparian  pro- 
prietor may  ditch  it  back  if  he  does  not  delay  beyond  a  reasonable 
time.20  At  all  events,  he  has  a  right  to  take  precautions  by  strength- 
ening the  banks  against  sudden  changes  by  freshets  and  washouts,21 

w  93  Am.  St.  Rep.  717,  note,  18  Paige  v.  Rocky  Ford  etc.  Co., 
citing  Hanson  v.  McCue,  42  Cal.  83  Cal.  84,  21  Pac.  1102,  23  Pac. 
305,  10  Am.  Rep.  299;  Anaheim  etc.  875;  Wholey  v.  Caldwell,  108  Cal.  95, 
Co.  v.  Semi-Tropic  etc.  Co.,  64  Cal.  49  Am.  St.  Rep.  64,  41  Pac.  31,  30 
192,  30  Pac.  623;  Lakeside  etc.  Co.  L.  R.  A.  820.  Dalloz,  "Jurispru- 
v.  Crane,  80  Cal.  181,  22  Pac.  76;  dence,"  vol.  40,  word  "Servitude," 
Alta  etc.  Co.  v.  Hancock,  85  Cal.  219,  saying  (translated  from  the  French) : 
20  Am.  St.  Rep.  217,  24  Pac.  645;  "To  exercise  the  right  of  irrigation, 
Bathgate  v.  Irvine,  126  Cal.  135;  it  is  necessary  to  be  a  riparian  pro- 
Walker  v.  Lillingston,  137  Cal.  401,  prietor.  If,  then,  a  watercourse  conies 
70  Pac.  282;  Crawford  Co.  v.  Hath-  to  change  its  bed,  the  proprietors  who 
away,  67  Neb.  325,  108  Am.  St.  Rep.  are  no  longer  on  the  new  bed  no 
647,  93  N.  W.  781,  60  L.  R.  A.  889;  longer 'preserve  upon  it  the  right  of 
Mud  Creek  etc.  Co.  v.  Vivian,  74  taking  water  for  irrigation,  nor,  con- 
Tex.  170,  11  S.  •W.  1078.  Eschriche  sequently,  of  making  constructions  to 
"Aguas,"  sec.  4  (Spanish  law),  trans-  conduct  the  waters  upon  their  prop- 
lated  in  Hall's  Irrigation  Develop-  erties."  Likewise  Pardessus  on  Servi- 
ment,  pp.  378,  379.  But  see  Arroyo  tudes,  vol.  1,  p.  262. 
D.  Co.  v.  Baldwin,  155  Cal.  280,  77  i»  Missouri  v.  Nebraska,  196  IT.  S. 
Am.  St.  Rep.  158,  58  Pac.  442,  hold-  23,  25  Sup.  Ct.  Rep.  155,  49  L.  Ed. 
ing  nipper  riparian  owner  bound  to  372;  Fowler  v.  Wood,  73  Kan.  511, 
let  water  go  by  for  lower  nonriparian  117  Am.  St.  Rep.  534,  85  Pac.  763, 
use.  6  L.  R.  A.,  N.  S.,  162. 

„,  a    CC1  20  York   County   v.   Rollo,    27   Ont. 

15  Supra,  sees.  616,  651.  App    72;   Morto/v    Oregoj[  Ry    c 

16  Infra,   sees.    864,    865,    State   ex  43  Qr.  444,,  120  Am.  St.  Rep.  827,  87 
rel.  Liberty  Lake  etc.  Co.  v.  Superior  pac.  151   1046,  7  L.  R.  A./N.  S.,  344. 
Court.  47  Wash.  310,  91  Pac.  968.  21  Cox   v.   Barnard,   39   Or.   53,   64 

17  See,  also,  infra,  sec.  901  et  seq.  Pac.  860. 


916  (3d  ed.)    Pt.  IV.    THE  COMMON  LAW  OF  EIPARIAN  EIGHTS.    §  863 

if  he  can  do  so  without  trespassing  upon  the  land  of  another.22 
Where  a  river  suddenly  changes  its  course  and  abandons  its  former 
bed,  the  respective  riparian  owners  are  entitled  to  the  posses- 
sion and  ownership  of  the  soil  formerly  under  its  waters,  as  far 
as  the  thread  of  the  stream.23  If  the  change  is  gradual  instead  of 
sudden,  the  right  is.  not  lost,  because  the  accretion  belongs  to  him 
with  his  own  land  and  preserves  his  right  of  access. 

The  law  of  accretion  is  considered  in  chief  below,  having  been 
here  mentioned  only  as  affecting  loss  of  riparian  right  to  flow  and 
use  of  the  stream.24 

(3d  ed.) 

§  863.  Adverse  Use. — Riparian  rights  may  be  lost  by  adverse 
use;  and  this  claim  is  the  favorite  last  resort  of  claimants  to  the 
use  of  water;  it  will  be  found  discussed  in  innumerable  cases.  In 
general,  the  requisites  are  the  same  as  those  elsewhere  discussed.25 
The  distinction  between  the  upper  and  lower  use  must  be  kept  in 
mind.  A  lower  use,  since  it  in  no  way  interferes  with  the  natural 
flow  above,  is  no  invasion  of  a  right  above.  No  action  would  lie,N 
and  so  no  prescriptive  right  nor  estoppel  can  arise  in  favor  of  a 
nonriparian  owner  below  stream  against  an  upper  riparian  owner.1 
Likewise,  there  is  no  such  thing  as  a  prescriptive  right  of  a  lower 
riparian  owner  to  receive  water  as  against  upper  owners.  Receiv- 
ing the  full  flow  of  a  stream  for  over  ten  years  was  held2  not  to 
give  a  prescriptive  right  that  will  prevent  reasonable  use  of  its 
waters  by  an  upper  owner,  saying:  "On  the  arguments  of  the  case 
at  bar  it  is  suggested  that  defendant  Hall  had  acquired  a  pre- 
22  Wholey  v.  Caldwell,  108  Cal.  95,  Cave  v.  Tyler,  133  Cal.  566,  65  Pac. 
49  Am.  St.  Rep.  64,  41  Pac.  31,  30  1089;  Davis  v.  Martin,  157  Cal.  657, 
L.  R.  A.  820.  108  Pac.  866;  Perry  v.  Calkins  (Cal.), 

23  Kinkead    v.    Turgeon,    74    Neb.       113   Pac.   136;    Clark  v.  Allaman,   71 
573,  104  N.  W.  1061,  1  L.  R.  A.,  N.       Kan.   206,   80  Pac.  571,  70  L.  R.  A. 
S.,  762,  109  N.  W.  744,  7  L.  R.  A.,       971;     Magistrate    v.    Elphinstone,    3 
N.  S.,  316,  13  Ann.  Gas.  43.  Kames   Dec.    331;    Stockport   W,   W. 

24  Infra,  sec.  901  et  seq.  v.  Potter,  3  Hurl.  &  C.  300.         "In 

25  Sec.   579  et   seq.     See  Gallagher       case    the    party    against    whom    such 
v.  Montecito  etc.  Co.,  101  Cal.  242,  35       adverse  user  is  asserted  is  an  upper 
Pac.  770;  Bathgate  etc.  Co.  v.  Irvine,       riparian  owner,  it  is  difficult  to  con- 
126  Cal.  135.  77  Am.  St.  Rep.  158,  58       ceive  of  a  case  where  the  use  of  the 
Pac.   442 ;    Oregon   etc.   Co.   v.    Allen       water    by   a   lower    diversion    can    be 
etc.  Co.,  41  Or.  209,  91  Am.  St.  Rep.       adverse."     Davis    v.    Chamberlain,    51 
701,  69  Pac.  455.  Or.    304,    98    Pae.    154.     See,    also, 

i  Hargrave   v.    Cook,    108    Cal.    72,  Beers  v.  Sharpe,  44  Or.  386,  75  Pac. 

41   Pae.  18,  30  L.  R.  A.  390;   Bath-  717. 

gate  v.  Irvine,  126  Cal.  135,   77   Am.  2  Crawford  v.   Hathaway,   67   Neb. 

St.   Rep.   158,   58   Pac.   442    (even   if  325,  108  Am.  St.  Rep.  647,  93  N.  W. 

a  notice  of  appropriation  be  posted)  ;  781,  60  L.  E.  A.  889. 


§  863  Ch.  37.     LOSS  OF  EIPAEIAN  EIGHT.  (3d  ed.)  917 

scriptive  right  to  the  full  flow  of  the  stream  by  ten  years'  user. 
There  cannot  be,  in  the  very  nature  of  things,  any  such  thing  as  a 
prescriptive  right  of  a  lower  riparian  owner  to  receive  water  of  a 
stream  as  against  upper  owners."3 

It  has  been  held  that  nonriparian  use  of  the  surplus  above  over 
the  possible  present  or  future  needs  of  the  riparian  proprietor  will 
not  be  adverse  to  him,  and  that  appropriation  of  considerable  quan- 
tities of  water  in  seasons  when  that  may  be  done  without  sensible 
injury  to  the  value  of  the  estates  of  lower  owners  does  not  give  a 
prescriptive  right  to  divert  the  whole  stream  in  dry  seasons.4  This 
is  the  line  of  minority  decisions  given  in  discussing  damage ;  that  is, 
the  decisions  holding  that  in  the  absence  of  the  possibility  of  dam- 
age, present  or  future  to  the  value  or  use  of  the  lower  riparian  land, 
no  wrong  is  done  the  lower  owner.  If  no  wrong  is  done,  no  pre- 
scription can  arise.  We  refer  to  that  discussion,  without  repeating 
it  further  here.  On  the  other  hand,  there  are  strong  decisions  that 
even  if  no  possible  damage,  yet  the  upper  use  of  the  surplus  may 
be  an  injury  and  adverse  and  a  prescriptive  right  may  arise.  That 
is,  they  say,  there  is  an  injury  because  a  prescriptive  right  will 
arise,  and  that  a  prescriptive  right  arises  because  there  is  an  injury. 
The  decisions  conflict.5 

An  upper  use  which  does  actual  damage  to  a  lower  proprietor 
or  impairs  the  value  of  his  land  or  his  capacity  of  future  use 
thereon,  and  which  (if  the  upper  user  is  a  riparian  proprietor)  is 
also  in  excess  of  the  reasonable  use  to  which  the  upper  proprietor 
is  entitled,  will  start  the  running  of  a  prescription  immediately, 
since  it  is  an  immediate  wrong.6 

It  has  been  suggested  that  beneficial  use  is  not  necessary  to  ac- 
quire a  prescriptive  right  against  a  riparian  owner,  but  the  ques- 
tion of  beneficial  use  in  prescription  is  probably  one  of  color  of 
title,  and  hence  involved  with  regard  to  the  one  in  whose  favor 
prescription  is  invoked,  and  not  with  regard  to  the  party  against 
whom  invoked.7 

3  Accord    Perry    v.    Calkins    (Cal.)  Kan.  206,  80  Pac.  571,  70  L.  B.  A. 
113  Pac.  136:  Hudson  v.  Dailey,  156  971;   Fifield  v.   Spring  Valley   Water 
Cal.   617,   105   Pac.   748    (nonuse   for  Co.,  130  Cal. -552,  62  Pac.  1054. 
thirty  years)  ;   Walker  v.  Lillingston,  5  Supra,  sec.  815  et  seq. 

137   Cal.  401,   70  Pac.   282;   Dunn  v.  «  Heilbron  v.  W.  Co.,  75  Cal.   117, 

Thomas.  69  Neb.  683,  %  N.  W.  142;  17  Pac.  65;  Alta  etc.  Co.  v.  Hancock, 

Mud  Creek  etc.  Co.  v.  Vivian,  74  Tex.  85  Cal.  219,  20  Am.  St.  Eep.  217,  24 

170,  11  S.  W.  1078.  Pac.  645.     See  supra,  sees.  801,  816, 

4  Meng  v.  Coffey,  67  Neb.  500,  108  concerning  present  damage. 

Am.  St.  Eep.  697,  93  N.  W.  715,  60  ^  See  ante,  sec.  586,  color  of  title. 

L.  E.  A.  910;  Clark  v.  Allaman,  71 


918  (3d  ed.)    Ft.  IV.    THE  COMMON  LAW  OF  EIPAEIAN  EIGHTS.    §  864 

It  has  been  said  that  the  effect  of  prescription  is  to  act  as  an 
extinguishment  of  the  riparian  right.8 

A  prescriptive  right,  being  once  acquired,  is  not  enlarged  by  sub- 
sequent enlargement  of  claim.  Such  enlargement  must  be  con- 
sidered independently,  upon  its  own  merits.9 

In  a  suit  to  restrain  the  use  of  water,  claims  by  defendants,  as 
riparian  owners,  and  by  adverse  user,  are  not  inconsistent.10 

Some  cases  upholding  prescriptive  rights  against  lower  riparian 
owners  are  given  in  the  note.11 

Where  the  course  of  a  stream  has  been  artificially  changed  and, 
for  a  time  exceeding  the  prescriptive  period,  a  community  of  lower 
owners  have  adjusted  themselves  to  the  new  condition  upon  the  basis 
of  riparian  rights,  their  rights  will  continue  to  be  adjusted  upon 
that  basis.12 

Prescription  is  the  primitive  basis  of  water-rights.  At  one  time 
most  of  the  common  law  of  watercourses  was  based  upon  prescrip- 
tion,13 and  such  is  to-day  the  basis  of  most  water-rights  in  the 
Hawaiian  Islands.14 

B.     EMINENT  DOMAIN.1S 
(3d  ed.) 

§  864.  Riparian  Right  may  be  Condemned. — The  diversion 
from  a  riparian  proprietor  is  a  taking  of  his  right  of  flow  and  use, 
and  cannot  be  done  for  private  use,  and  cannot  be  done  even  for  pub- 
lic use  without  eminent  domain  proceedings.  A  water  company 
cannot  deprive  other  riparian  owners  of  the  water  merely  because  it 

8  Alta   L.    &   W.    Co.   v.   Hancock,  Porter,  51  Or.  318,  95  Pac.  732,  98 
85    Cal.    223,    20    Am.    St.   Eep.    217,  Pac.    1083,    at    1101,    102    Pae.    728; 
24  Pac.  645.  Harrington   v.   Demaris,   46   Or.    Ill, 

9  Miller  v.  Madera  etc.  Co.  (1909),  77  Pac-  603>  82  Pac-  14>  1  L-  R-  A-> 
155  Cal.  59,  99  Pac.  502.  22  L.  E.  A.,  N-   Sv   756;    Cottel  v.   Berry,   42   Or. 
N    g     391  '  59-3,  72  Pac.  584.     But  see  Mason  v. 

..  ''       .  '       „.       ,     v      c,   „     on,  Shrewsbury    (1871).    L.    E.    6   Q.   B. 

o«  pDaT,7'  Chamberlm'  51  °r*  3°4'  578,  holding  that  where  one  had  for 

forty  years  diverted  a  whole  stream, 

11  Heilbron  v.  W.  Co.,  75  Cal.  117,  a   iower   riparian   owner   acquired   no 
17  Pac.  65;   Hough  v.  Porter,  51  Or.  prescriptive  right  to   have   the   diver- 
318,   95   Pac.    732,   98   Pac.    1083,   at  gion    continued.     When,    consequently, 
1101,   102   Pac.    728;    Arroyo   D.   Co.  the  upper  claimant  ceased  the  diver- 
v.  Baldwin  (1909),  155  Cal.  280,  100  sion  an(j  the  water  now  coming  down 
Pac.  874;  Strong  v.  Baldwin  (1908),  resulted,   because   of   changes   in    the 
154  Cal.  150,  129  Am.  St.  Eep.   149,  hitherto    dry   bed,   in   flooding   plain- 
97    Pac.    178;    Montecito    W.    Co.    v.  tiff's  land,   plaintiff  was  not  entitled 
Santa  Barbara,  144  Cal.  578,  77  Pac.  to  damages. 

H12.  13  Supra,  sec.  667. 

12  This    matter    is    fully    discussed,  14  Infra,  sec.  1434. 

supra,   sec.   60.     See,  also,   Hough  v.          is  See,  also,  supra,  sec.  604  et  seq. 


§  864  Ch.  37.     LOSS  OF  EIPAEIAN  RIGHT.  (3d  ed.)  919 

is  also  a  riparian  owner.16  Nor  can  a  city  take  the  water  for  a  water 
supply  without  condemnation.17  It  is  a  taking  of  property,  and 
condemnation  proceedings  are  necessary,  as  in  regard  to  other  prop- 
erty even  on  navigable  streams,  and  even  where  the  taking  is  for 
improvement  of  navigation.18 

What  is  a  public  use  has  already  been  considered.19 
The -riparian  right  may  be  condemned.  In  Lux  v.  Haggin  it  is 
said:  "This  court  has  held  that  the  property  of  a  riparian  owner 
in  the  waters  flowing  through  his  land  may,  upon  due  compensation 
to  him,  be  condemned  to  the  public  use  by  proceedings  initiated  by 
a  corporation  organized  to  supply  a  town  with  water.20  In  the 
learned  opinions  of  Justices  Ross  and  Myrick  in  that  case  the  right 
of  the  riparian  proprietor  to  the  use  of  the  water  is  designated 
'property';  an  'incident  of  property  in  the  land,  inseparably  an- 
nexed to  the  soil,'  as  part  and  parcel  of  it;  'an  incorporeal21  here- 
ditament appertaining  to  the  land. '  The  main  question  in  the  case 
was  whether  the  code  provided  for  a  condemnation  of  that  species 
of  property  to  public  uses.  The  question  was.  answered  in  the 
affirmative. "  This  condemnation  does  not  require  the  condemna- 
tion of  any  land ;  the  incorporeal  right  itself  may  be  condemned  as 
an  individual  thing  without,  as  is  sometimes  done,  condemning  a 
riparian  strip  of  land.22 

In  St.  Helena  Co.  v.  Forbes,  supra,  it  was  said  (italics  ours) : 
"A  right  thus  to  interfere  with  the  natural  right  to  make  use  of 
water  belonging  to  another  where  it  is  connected  with  the  occupa- 
tion of  land,  would  constitute  an  easement  in  favor  of  the  latter, 
as  the  dominant  estate.  Such  an  easement  may  be  acquired  like 
other  easements,  by  grant,  or  by  an  adverse  enjoyment  so  long  con- 
tinued as  to  raise  a  legal  presumption  of  a  grant.  If  there  is  any 
difference  in  the  nature  of  the  same  right  when  acquired  by  con- 

16  Rigney    v.    Tacoma    etc.    Co.,    9  21  Note  the  use  of  the  word  "in- 
Wash.  576,  38  Pac.  147,  26  L.  R.  A.       corporeal." 

425;    Duckworth    v.    Watsonville    etc.  22  Bigelow  v.  Draper,  6  N.  D.  152, 

Co.,  150  Cal.  520,  89  Pac.  338.  69  N.  W.  570;   St.  Helena  Water  Co. 

17  City  of  New  Whatcom  v.   Fair-  v.  Forbes,  supra,  62  Cal.  182,  45  Am. 
haven  etc.  Co.,  24  Wash.  493,  64  Pac.  Rep.  659;  Northern  etc.  Co.  v.  Stacher 
735,   54   L.    R.   A,    190;    Emporia   v.    "  (1909),   13   Cal.   App.   404,   109   Pac. 
Soden,    25    Kan.    588,    37    Am.    Rep.  896;    State    ex    rel.    Burrows    v.    Su- 
265.  perior  Court,  48  Wash.  277,  93  Pac. 

is  Bingham  v.  Port  Arthur  etc.  Co.,  426.     Cft  Duckworth  v.  Watsonville 

100  Tex.  192,  97  S.  W.  686,  13  L.  R.  Co.,  150  Cal.  520,  89  Pac.  338;  Duck- 

A.,  N.  S..  656.  worth   v.   Watsonville   Co.,    158   Cal. 

i»  Supra,  sec.  606  et  seq.  206,  110  Pac.  927.     See,  also,  17  L. 

20  Citing    St.    Helena    W.    Co.    v.  R.  A.,  N.  S.,  1005,  note. 
Forbes,  62.  Cal.  182,  45  Am.  Rep.  659. 


920  (3d  ed.)    Pt.  IV.    THE  COMMON  LAW  OF  RIPARIAN  RIGHTS.    §  864 


demnation  proceedings,  we  are  unable  to  perceive  it."  And  conse- 
quently it  seems  clear  that  condemnation  can  affect  only  the 
defendants  to  the  suit,  and  cannot  affect  other  riparian  owners,  just 
as  a  grant  by  one  riparian  owner  is  of  no  validity  against  noncon- 
tracting  riparian  owners.23 

In  Washington,24  the  riparian  owner  must  submit  to  the  con- 
demnation of  the  riparian  right  to  the  natural  flow  of  the  water, 
with  the  limitation,  however,  that  water  that  is  used  by  said  per- 
son himself  for  irrigation,  or  that  is  needed  for  that  purpose  by 
any  such  person,  may  not  be  condemned.  This  reservation  from 
condemnation  of  use  for  irrigation  was  held  K  to  cover  only  present 
use,  and  only  such  future  use  as  is  in  present  contemplation  and  is 
actually  accomplished  with  reasonable  diligence  within  reasonable 
time — about  two  or  three  years,  the  court  said.1  The  decision,  how- 
ever, is  limited  strictly  to  a  construction  of  the  statute,  and  is  to 
the  effect  that  the  exemption  from  condemnation  does  not  extend  to 
the  full  common-law  right  to  irrigate.  That  right  is  independent 
of  present  use,  or  of  diligence,  or  of  intent  to  make  future  use ;  all 
possible  future  use,  intended  or  not,  however  long  in  accomplish- 
ment, is  preserved  by  the  common  law.  In  denying  this  full  ex- 
tent to  the  exemption,  the  Washington  court  in  effect  construes  the 
statute  not  to  exempt  the  full  riparian  right  to  irrigate,  but  only  a 
restricted  right  is  exempted,  analogous  rather  to  the  law  of  "future 
needs"  in  appropriation.2  In  a  later  case  under  the  same  statute  it 


23  Supra,  see.  847,  grant;   and  sec. 
625  et  seq.,  unrepresented  interests. 

24  Under  sec.  4156,  Ballinger's  Ann. 
Codes  and  Stats.     Pierce's  Code,  sees. 
5869,  5871. 

25  State  ex  rel.  Liberty  Lake  etc. 
Co.  v.  Superior  Court,  47  Wash.  310, 
91  Pac.  968.     See,  also,  State  ex  rel. 
Kettle  Falls  etc.  Co.  v.  Superior  Court, 
46  Wash.  500,  90  Pac.  650;  Nesalhous 
v.    Walker,    45    Wash.    621,    88    Pac. 
1032. 

i  In  the  opinion  it  is  said:  "The 
question,  then,  turns  upon  the  mean- 
ing and  intention  of  the  legislature 
by  the  expression  'needed,'  as  em- 
ployed in  section  4156,  Ballinger's 
Annotated  Codes  and  Statutes.  We 
think  it  means  the  water  necessary  to 
irrigate  the  land  of  the  littoral  or 
riparian  owner  which  he  now  has 
under  irrigation,  and  also  that  which 
he  intends  to,  and  will,  place  under 
irrigation  within  a  reasonable  time. 


It  cannot  be  supposed  that  the  legisla- 
ture intended  that  a  riparian  owner 
could  prevent  an  irigating  company 
from  appropriating  water  not  then  in 
use,  but  which  the  riparian  owner 
might  need  and  use  upon  his  land 
at  some  distant,  indefinite  time  in  the 
future.  Such  a  construction  would  be 
in  the  interest  of  the  speculator, 
rather  than  for  the  encouragement  of 
the  land  improver  and  home  builder. 
The  statute  gives  the  riparian  owner 
a  preference  right,  upon  the  theory 
that  he  needs  and  will  avail  himself 
of  the  privilege  thus  given  him.  If 
he  is  not  using  the  water,  and  does 
not  purpose  to  use  it  as  soon  as 
practicable  in  the  ordinary  and  rea- 
sonable development  or  cultivation  of 
his  lands,  then  there  is  no  reason 
why  the  water  should  be  withheld 
from  others  who  need  and  will 
promptly  use  it  if  permitted." 
2  Supra,  sec.  483  et  seq. 


§§  865,  866  Ch.  37.     LOSS  OF  K1PARIAN  EIGHT.  (3d  ed.)  921 

was  held  that  the  condemnor  water  company  may  prove  the  number 
of  irrigable  acres  of  the  riparian  proprietor  on  a  lake,  and  the  quan- 
tity sufficient  per  acre,  and  it  is  then  no  objection  to  the  condemna- 
tion that  it  will  result  in  a  joint  user  of  the  water  of  the  lake 
between  the  riparian  proprietor  and  the  condemnor.3 

(3d  ed.) 

§  865.  Clark  v.  Nash. — Under  the  decision  in  Clark  v.  Nash,4 
States,  under  certain  conditions,  may  pass  statutes  giving  a  non- 
riparian  owner  the  right  to  condemn  rights  of  way  for  ditches  over 
riparian  lands  for  his  private  nonriparian  irrigation,  where  certain 
peculiar  conditions  make  this  inferentially  a  public  use.5  In  the 
French  law,  based  fundamentally  upon  the  law  of  riparian  rights, 
an  extensive  use  of  this  principle  is  made  to  establish  a  system  for 
acquiring  nonriparian  uses  by  condemnation.6  Upon  the  same  lines, 
the  States  following  the  Colorado  doctrine,  recognizing  no  right  in 
the  riparian  owner  as  to  the  water,  recognize  his  right  to  the  exclu- 
sive possession  of  his  land,  and  provide  a  system  for  acquiring  rights 
of  way  for  ditches  for  nonriparian  owners  over  the  riparian  land. 
by  condemnation.7 

When  the  riparian  lands  are  all  settled  upon,  condemnation  will, 
as  a  rule,  have  to  be  resorted  to  by  nonriparian  appropriators  even 
in  Colorado,  the  only  difference  between  Colorado  and  California 
after  full  settlement  being  that  the  nonriparian  appropriator  must 
pay  for  the  water  as  well  as  the  right  of  way  in  California,  while  in 
Colorado,  only  for  the  right  of  way. 

Reference  is  made  to  a  preceding  chapter.7* 

(3d  ed.) 

§  866.    Procedure  on  Eminent  Domain. — In  Nebraska  the  law  8 

authorizes  the  condemnation  of  the  right  of  a  private  riparian  pro- 
prietor to' the  use  and  enjoyment  of  a  natural  stream  flowing  past 
his  land,  or  its  impairment  by  an  appropriation  of  such  water  for 
irrigation  purposes ;  and  such  riparian  proprietor  may  recover  dam- 
ages in  the  same  way  and  subject  to  the  same  rules  as  a  person 

3  Spokane  Co.  v.  Arthur  Jones  Co.,          «  Supra,  sec.  614  et  seq. 
53  Wash.  37,  101    Pac.  515.  7  Supra,  sees.  225,  232. 

4  198  U.  S.  361,  25  Sup.  Ct.  Rep.  fa  Supra,  sec.  607  et  seq. 

676,  49  L.  Eel.  1085,  4  Ann.  Cas.  1171  8  Comp.  Stats.    1901,    sec.    41,  art. 

(already  considered).  2,  c.  93a,  and  of  section  21,  article  1, 

s  Supra,    sec.    608.     See,    for    ex-       of  the  Constitution, 
ample,  Pierce's  Washington  Code,  sec. 
5127,  sec.  5848. 


922  (3d  ed.)    Pt.  IV.    THE  COMMON  LAW  OF  RIPARIAN  RIGHTS.    §  866 

whose  property  is  affected  injuriously  by  the  construction  and  oper- 
ation of  a  railroad.9  In  Texas  10  it  is  held  that  while,  in  that  State, 
the  irrigation  act  provides  for  the  condemnation  of  a  right  of  way 
only  for  an  irrigation  canal,  still,  under  Sayles'  Civil  Statutes,11 
authorizing  canal  companies  to  condemn  any  land  necessary  for 
their  use,  an  irrigation  company  12  may  divert  water  which  a  ripa- 
rian proprietor  had  the  right  to  have  flow  in  a  certain  channel,  and 
to  the  use  thereof  as  such  owner. 

The  damages  on  eminent  domain  are  usually  held  to  be  the  loss 
in  value  of  the  riparian  land  consequent  upon  loss  of  the  use  of 
the  water,  future  possible  use  being  of  equal  importance  with  use 
actually  being  made  (or  if  no  use  is  being  made  at  all)  ,13  The  dam- 
ages are  measured  by  depreciation  in  value  of  the  land,  and  cannot 
be  figured  at  so  much  a  front  foot  on  the  stream.14  The  Nebraska 
rule  is  to  figure  damage  on  the  analogy  to  one  whose  property  value 
is  decreased  by  smoke  from  a  railway,  saying:  "The  right  of  the 
property  owner  to  the  benefit  and  advantage  of  a  street  and  high- 
way adjacent  to  his  land  and  the  right  of  the  riparian  owner  to 
the  reasonable  use  and  enjoyment  of  the  water  in  a  flowing  stream 
over  or  adjoining  his  land  are  not  without  features  rendering  them 
in  a  measure  analogous. ' ' 15  And  gives  loss  of  future  use  little 
weight  where  no  present  use,  contrary  to  a  cardinal  principle  of 
the  common  law.16  In  Nebraska  it  has  been  held:  "In  consequence, 
if  a  reasonable  use  of  the  water  consistent  with  a  like  use  by  other 
riparian  owners  cannot  be  made  in  a  particular  case,  the  injury  of 
the  riparian  owner  by  reason  of  appropriation  [and  condemnation] 
of  the  water  by  an  irrigation  enterprise  is  nominal  only."  17 

This  violates  the  rule  that  the  rights  of  strangers  to  a  suit  cannot 
be  considered.  At  common  law  only  riparian  proprietors  can  take 
water,  and  one  not  such  cannot  defend  his  trespass  by  saying  that 

9  Crawford  v.   Hathaway,   67   Neb.  15  Crawford  v.  Hathaway,  67  Neb. 
325,  108  Am.  St.  Rep.  647,  '93  N.  W.  325,  108  Am.  St.  Rep.  647,  93  N.  W. 
781,  60  L.  R.  A.  889;  MeCook  Irr.  Co.  781,   60  L.   R.  A.  889.     Cf.   Olympia 
v.  Crews,  70  Neb.  115,  102  N.  W.  249.  L.  &  P.  Co.    v.  Harris   (Wash.),  108 

10  McGee  Irr.  Co.  v.  Hudson  (Tex.       Pac.  940. 

Sup.),  22  S.  W.  967.  !6  MeCook  v.  Crews,  70  Neb.  109, 

11  Art.  628,  sec.  6.  996.     See    supra,    sees.    616,    651    et 

12  Formed  under  the.  act  of  1889  of       seq. 

the  laws  of  Texas.  17  MeCook    etc.    Co.    v.    Crews,    70 

13  Lux  v.  Haggin,  69  Cal.  255,  10  Neb.  109,  96  N.  W.  996.     Cf.  Tacoma 
Pac.   674.     See  Cal.   Code  Civ.  Proc.,  etc.    Co.   v.   Smithgall    (Wash.),    108 
sec.  1248.  Pac.   1091,  also  improperly  admitting 

14  Hercules  W.  Co.  v.  Fernandas,  5  consideration   of   the   outstanding   ri- 
Cal.  App.  726,  91  Pac.  401.  parian  owners. 


§§867-870  Ch.37.     LOSS  OF  RIPARIAN  EIGHT.  (3ded.)923 

there  are  other  riparian  proprietors  having  as  good  (or  better) 
right  to  the  water  as  plaintiff.  The  same  principle  should  apply 
to  damages  on  eminent  domain.  The  other  proprietors  may  never 
seek  to  use  the  water,  in  which  case  the  one  who  does  can  take, 
against  a  wrongdoer,  all  he  could  ever  possibly  put  to  use,  though 
it  might  be  the  whole  stream,  unlimited  by  the  like  use  of  others 
who  do  not  insist  on  their  rights.  The  condemnor  should  not  be 
allowed  to  set  up  their  rights  for  them  (unless  he  joins  all  as  de- 
fendants) ,18 

Reference  is  also  made  to  the  general  chapters  upon  procedure 
and  upon  eminent  domain.19 

(3d  ed.) 

§§  867-870.     Some  footnote  cross-references  have  been  made  to 

these  numbers.  The  matter  referred  to  will  be  found  in  other  sec- 
tions.20 

18  Supra,    sees.'  616,    626    et    seq.,  Wash.   323,   105   Pac.   636;    State  ex 

651  et  seq.,  753.  rel.  Mclntosh  v.  Superior  Co.  (1909), 

Condemnation  of  riparian  right  of  56  Wash.  214,  105  Pac.  637. 

wharfage  and  access.     See   Columbia  i»  Supra,  cc.  26,  27. 

etc.    Co.    v.    Hutchinson    (1909),    56  20  See  supra,  sees.  616,  651,  et  seq. 

§§  871-879.     (Blank  numbers.), 


924  (3d  ed.)    Pt.  IV.    THE  COMMON  LAW  OF  RIPARIAN  RIGHTS.    §  880 


CHAPTER  38. 
PROCEDURE.1 

§  880.  General. 

§  881.  Parties. 

§  882.  Equitable  remedies. 

§  883.  Pleading  and  proof — Between  riparian  owners  themselves. 

§  884.  Same — Between  a  riparian  and  a  nonriparian  owner. 

§  885.  Pleading  (continued). 

§  886.  Actions  at  law. 

§  887.  Judgment  or  decree. 

§§  888-896.     (Blank  numbers.) 

(3d  ed.) 

§  880.  General. — "We  have  elsewhere  considered  the  criterion 
of  wrongfulness  or  legal  injury  to  the  complaining  proprietor, 
which  criterion  is  the  same  whatever  form  the  injury  may  take.  It 
may  be  by  diminution  or  diversion,  by  retardation  or  acceleration, 
by  backing  the  water  and  flooding  the  upper  proprietor,  or  by 
polluting  the  water  and  deteriorating  its  quality.  In  all,  the  test 
between  riparian  proprietors  is  whether  the  act  done  by  the  pro- 
prietor complained  of  does  unreasonable  present  damage,  or,  in  the 
absence  of  present  damage,  unreasonably  impairs  the  future  capac- 
ity of  the  complaining  proprietor  to  make  an  equally  beneficial  use 
of  his  land;  between  a  riparian  and  a  nonriparian  owner,  whether 
the  act  has  or  may  in  the  future  have  any  impairing  effect  at  all 
upon  the  use  or  value  of  the  riparian  land,  irrespective  of  any  ques- 
tion of  "reasonableness." 

Concerning  diminution  or  diversion,  that  is  so  closely  connected 
with  the  previous  discussion  that  further  consideration  here  would 
be  repetition.  Concerning  retardation  or  acceleration,  much  will 
be  found  in  the  Eastern  decisions  where  steadiness  of  flow  for  mill 
power  is  the  chief  use  of  water  instead  of  irrigation  as  in  the  West ; 
but  the  writer's  notes  contained  no  Western  decisions  worth  noting 
where  an  injurious  retardation  or  acceleration  aside  from  a  diver- 
sion was  involved.  Concerning  backing  the  water  upon  an  upper 
proprietor,  the  writer  has  considered  a  discussion  of  the  law  of  flood- 
ing or  its  converse,  drainage,  foreign  to  the  field  of  this  book.2 

1  See  also,  supra,  c.  27.  from  floods)  ;  infra,  sec.  1140  (drain- 

2  A  few  sections  dealing  therewith       age  of  ground  water). 

are    supra,    sees.    347,    348     (surface  As   an   example,   however,   of  back- 

water);    sec.    461    et    seq.     (damage       ing:   If  a  railroad  company,  in  build- 


§  881     Ch.  38.     PROCEDURE  UNDER  RIPARIAN  SYSTEM.     (3d  ed.)  925 
Questions  of  pollution  are  considered  in  a  previous  chapter.3 

(3d  ed.) 

§  881.  Parties. — Throughout  this  "book  we  have  shown  the 
fundamental  rule  that  a  case  must  be  decided  upon  the  relative 
rights  of  the  parties  before  the  court,  without  regard  to  the  rights 
of  strangers  to  the  suit.4  The  rule  of  procedure  set  forth  under 
the  law  of  appropriation,  that  the  rights  of  strangers  to  a  suit  can- 
not be  considered,  applies  with  equal  force  here.  In  a  suit  between 
a  riparian  owner  and  a  wrongdoer,  the  rights  of  other  riparian 
owners  cannot  be  set  up.  Consideration  for  other  riparian  owners 
may  limit  the  use  of  one  of  them  at  their  complaint,  but  a.  wrong- 
doer is  not  entitled  to  be  substituted  to  such  consideration,  nor  to 
get  the  benefit  of  it,  nor  use  the  rights  of  other  riparian  owners, 
strangers  to  the  suit,  in  his  own  defense.  A  defendant  may  be  a 
wrongdoer  to  plaintiff  though  plaintiff  be  himself  a  wrongdoer  as 
to  other  persons  who  are  not  parties  to  the  action.  Nor  can  a  ripa- 
rian owner  contest  an  appropriation  upon  the  basis  of  the  rights  of 
the  other  riparian  owners  when  they  are  not  parties  to  the  suit.  A 
repetition  of  the  authorities  need  not  be  made  here. 

A  reversioner  may  sue.5  A  lessee  of  riparian  proprietor  may 
maintain  injunction  suit  against  a  wrongdoer.6 

Other  questions  will  be  found  considered  in  the  general  chapter 
upon  procedure.7 

(3d  ed.) 

§  882.  Equitable  Remedies. — The  right  to  an  injunction  has 
been  sufficiently  covered  by  the  discussion  of  injunction  under  the 
law  of  appropriation.8  The  formal  requisites  are  the  same,  though 
the  application  of  them  to  the  rights  of  a  riparian  proprietor  in- 

ing  a  bridge  across  a  stream,  fails  to  of  such  reasonable  use  is  prevented, 

leave  ample  passageway  for  so  much  Bauers   v.   Bull,   46   Or.   60,   78   Pac. 

water  as  might  reasonably  have  been  757. 

anticipated  would  flow  in  the  stream,  a  Supra,  sec.  523. 

and  the  bridge  dams  the  water  back  4  g            gecg    g,    246    an(J  fi        .. 

on  the  riparian  owner  to  his  injury,  „,  69|  ^ 
the   railroad    company   will   be   liable 

for  the  resulting  loss.     Atchison  etc.  5  Gould   v.    Stafford,    91    Cal.    146, 

Co.  v.  Herman,  74  Kan.  77,  85  Pac.  2"  Pac.  543. 

817.     As    an    example    of    drainage:  6  Crook  v.  Hewitt,  4  Wash.  749,  31 
One   proprietor  cannot  build   a   ditch  Pac.  28,  California  etc.  Co.  v.  Enter- 
to  drain  his  land  if  thereby  he  diverts  prise  etc.   Co.,   127   Fed.   741,  quoted 
from    a    stream    water   in   which    an-  supra,  sec.  819,  note  10. 
other  proprietor  is  entitled  to  a  -rea-  7  Supra,  sec.  624  et  seq. 
sonable  use,  if  thereby  the  possibility  8  Supra,  sec.  641  et  seq. 


926   (3d  ed.)    Pt.  IV.    THE  COMMON  LAW  OF  RIPARIAN  RIGHTS.     §  883 

volve  other  considerations,  sufficiently  set  forth  in  a  preceding 
chapter.9 

The  right  of  a  riparian  proprietor  to  the  flow  of  water  through 
his  land  is  inseparably  annexed  to  the  soil,  not  as  an  easement,  or 
appurtenance  thereto,  but  as  a  part  or  parcel  of  the  land,10  and  an 
action  to  quiet  his  title  to  such  water  must,  under  the  California 
constitution,  be  commenced  in  the  county  where  the  land  or  some 
part  of  it  is  situated.11 

Other  questions  will  be  found  considered  in  the  general  chapter 
upon  procedure.12 

(3d  ed.) 

§  883.  Pleading  and  Proof — Between  Riparian  Owners  Them- 
selves.— In  a  suit  in  equity  for  apportionment  of  water  between 
riparian  owners  the  plaintiff  must  plead  the  amount  of  his  irrigable 
riparian  lands  (if  claiming  for  irrigation)  and  the  amount  of  water 
reasonably  necessary  for  his  use  upon  such  lands.13  He  must  also, 
on  the  trial,  furnish  evidence  upon  the  volume  of  the  stream,  the 
character  of  the  soil,  the  number  of  proprietors,  and  the  various 
surrounding  circumstances  from  which  the  question  of  reasonable- 
ness is  to  be  determined  in  each  case.14 

This  should  not  necessarily  apply  to  injunction  between  riparian 
owners,  since  plaintiff  is  entitled  to  be  protected  against  excessive 

9  Supra,  sees.  795,  814  et  seq.     A  (1908),    154   Cal.    150,    129   Am.   St. 
recent  Texas  ruling  is  that,  unless  us-  Rep.    149,    97    Pac.    178;    Hudson    v. 
ing   water,    a   riparian    owner   is   not  Dailey,   156   Cal.   617,   105   Pac.   748; 
entitled   to   a  preliminary  injunction.  Perry  v.  Calkins  (Cal.),  113  Pae.  136. 
Biggs  v.  Leffingwell  (Tex.  Civ.  App.),  14  Ibid.,  and  Coleman  v.  La  Franc, 
132  S.  W.  902.     But  in  California  that  137  Cal.  214,  69  Pac.  1011;  Jones  v. 
rests    in    the    discretion    of    the    trial  Conn,  39  Or.  30,  87  Am.  St.  Rep.  634, 
court.     Miller  v.  Madera  etc.  Co.,  155  64  Pac.  855,  65  Pac.  1068,  54  L.  R.  A. 
Cal.  59,  99  Pac.  502,  22  L.  R.  A.,  N.  630;  Riverside  etc.  Co.  v.  Gage,  89  Cal. 
S.,  391.  410,  26  Pac.  889 ;  Hough  v.  Porter,  51 

10  Lux  v.  Haggin,  69  Cal.  255,  391,  Or.  318,  95  Pac.   732,   98  Pac.   1083, 
10  Pac.  674.  102  Pac.  728.     In  Hough  v.  Porter,  51 

11  Miller  &  Lux  v.  Madera  etc.  Co.,  Or.  318,  95  Pac.   732,   98   Pac.   1083, 
155   Cal.   59,  99   Pac.   502,   22  L.   R.  102  Pac.  728,  it  is  held  that  where  the 
A.,  N.  S.,  391.  testimony  before   the  appellate  court 

12  Supra,  c.  27.  is  not  ample  for  a  determination  of 

13  Wutchumna  Water  Co.  v.  Pogue,  the  quantity  to  be  left  in  the  stream 
151    Cal.    105,    90    Pac.    362;    citing  properly  to  supply  the  domestic  and 
Riverside  Water  Co.  v.  Gage,  89  Cal.  other    natural    wants    and    necessary 
420,   26   Pac.   889;    Wiggins  v.   Mus-  requirements   of   the   riparian   owners 
cupiabe  L.   &  W.   Co.,   113   Cal.   194,  along    the    controverted    stream,    the 
54   Am.   St.    Rep.   337,   45   Pac.    160,  appellate   court   may   determine   other 
32  L.  R.  A.  667;  San  Luis  Water  Co.  points    upon   which    the   testimony   is 
v.    Estrada,    117    Cal.    182,    48  •  Pac.  adequate  for  the  purpose,  and  remand 
1075;    Strong    v.    Baldwin,    137    Cal.  the    cause    to    the    court    below    with 
432,  70  Pac.  288;  Strong  v.  Baldwin  permission  to  take  further  evidence. 


§  883     Ch.  38.     PROCEDURE  UNDER  RIPARIAN  SYSTEM.     (3d  ed.)  927 

injury  to  his  rightful  use  now  or  hereafter,  whatever  the  extent  of 
that  use  may  be.  For  an  injunction  plaintiff  must  plead  that  de- 
fendant's taking  is  excessive.15  But  that  should  seem  to  be  enough 
whore  no  apportionment  is  asked.  The  bill  for  an  apportionment 
is  distinct  from  one  for  an  injunction.  "It  is  suggested  that  the 
court  ought  to  ascertain  and  determine  the  rights  of  the  respective 
parties,  and  fix  them  in  the  decree,  so  that  hereafter  there  may 
be  no  controversy  concerning  the  matter.  In  the  very  nature  of 
things,  however,  it  is  impossible  in  a  case  of  this  character  to  make 
such  a  decree.  The  rights  of  the  several  riparian  proprietors  are 
equal,  each  being  entitled  to  but  a  reasonable  use  of  the  water  for 
irrigating  purposes,  and  what  constitutes  such  use  must  necessarily 
depend  upon  the  season,  the  volume  of  water  in  the  stream,  the  area 
and  character  of  the  land  which  each  riparian  proprietor  proposes 
to  irrigate,  and  many  other  circumstances ;  so  that  it  seems  to  us 
there  is  no  basis  upon  which  the  court  could  frame  any  other  decree 
than  one  enjoining  and  restraining  the  defendant  from  diverting 
the  water  from  the  stream  to  the  substantial  injury  of  the  present 
or  future  rights  of  the  plaintiffs,  and,  as  the  decree  of  the  court 
below  is  to  that  effect,  it  will  be  affirmed. ' ' 16  The  rule  that  the 
riparian  right,  as  between  riparian  owners,  is  one  to  be  protected 
against  unreasonable  interference,  leaves  it  an  ultimate  question 
of  fact  in  each  case  what  that  may  be,  so  that  the  allegation  and 
proof  of  unreasonableness  of  defendant  would  appear  to  be  suffi- 
cient where  no  apportionment  is  asked.17  If  more  pleading  and 

15  Perry  v.  Calkins  (Cal.),  113  Pac.  object    was    to    obtain    a    decree    de- 
186.  claring  the  other  parties  to  be  with- 

16  Jones    v.    Conn,    39    Or.    30,    87  out  any  right  whatever  in  such  waters. 
Am.    St.   Rep.   634,   64   Pac.   855,    65  It  may  be  conceded  that  the  allega- 
Pac.  1068,  54  L.  R.  A.  630.  tions    of    the    pleadings    were    broad 

17  A   recent    California    case    is   to  enough   to  have  permitted   the  deter 
the    same    effect.     Mr.     Justice     An-  ruination   of  this   matter  if  sufficient 
gellotti  said   (Strong  v.  Baldwin,  154  evidence  had  been  presented  thereon. 
Cal.   150,   129   Am.   St.   Rep.   149,   97  The   court   was    not    compelled,    how- 
Pac.  178)  :   "Complaint  is  made  of  the  ever,  to  determine  this  question  in  the 
failure  of  the  court  to  find  and  decree  absence  of  evidence   sufficient  to   en- 

the  quantity   of  water  the  respective  able    it    to    do    so The    extent 

parties  were  entitled  to  use  as  ripa-  of  the  riparian  rights  of  the  parties 

rian  owners The  case  is  mani-  to  this  action  could  not  be  determined 

festly  one  where  the  pleading  of  the  without  taking  into  consideration  the 

party  complaining  was  not  presented  rights    of    these    other    riparian    pro- 

for  the  purpose  of  obtaining  an  ap-  prietors,    as    to    which    there   was    no 

portionment  of  certain  waters  among  evidence     whatever,     and     concerning 

the     riparian     owners.     It     was     not  which   there   could,   of   course,   be   no 

drawn  on  any  such  theory,  and  does  binding  determination  in  the  absence 

not  recognize  the  cross-defendants  as  of   such   owners.     But   even   if    there 

riparian     owners    at    all.     The    real  were  no   such   other   ov.-ners,  our   ex- 


928  (3d  ed.)    Pt.  IV.    THE  COMMON  LAW  OF  BIPAEIAN  EIGHTS.    §  884 

proof  are  required,  it  would  mean  that  the  court  refuses  injunctions 
between  riparian  owners  in  all  cases  except  where  apportionment 
is  asked;  which  is  obviously  a  position  no  court  has  intended  to 
take. 

The  burden  of  proving  that  a  use  by  one  riparian  owner  is  un- 
reasonable to  another  riparian  owner  rests  upon  the  complaining 
riparian  owner.18 

(3d  ed.) 

§  884.  Same — Between  a  Riparian  and  a  Nonriparian  Owner. 
Where  a  nonriparian  owner  diverts  water  flowing  by  or  over  private 
riparian  land,  the  right  of  a  riparian  owner  against  him  has  been 
discussed  in  another  chapter.19  As  there  is  no  question  of  "rea- 
sonableness" (in  its  correlative  sense  denoting  sharing) .  involved, 
there  can  be  no  apportionment  in  the  nonriparian  owner's  favor, 
and  hence  an  injunction  may  be  granted  without  evidence  or  plead- 
ing of  what  would  be  a  "reasonable  use"  by  the  riparian  owner 
had  he  been  contesting  with  another  riparian  owner.20 

' '  In  Brown  v.  Best,20*  Lord  Chief  Justice  Lee  is  reported  to  have 
said  that  a  watercourse  is  jure  naturae,  and  therefore  a  declaration 
stating  merely  the  possession  of  the  place  through  which  the  water 
used  to  run  is  good.  And  Denison,  Justice,  said  that  in  natural 
watercourses  that  was  the  most  proper  mode  of  declaring";21  and 
such  is  the  generally  established  rule  of  pleading.  An  allegation 
* '  that  defendant  is  the  owner  of  lot  25,  through  which  the  creek  runs, 
and  of  all  dams,  ditches  and  water-rights  thereon,"  is  enough  to 
raise  an  issue  as  to  his  riparian  rights.22  Ownership  of  land 

animation  of  the  record  has  satisfied  18  Miner  v.  Gilmour,  12  Moore  P.  C. 

us  that  the.  evidence  introduced   was  155,  14  Eng.  Eeprint,  861,  a  leading 

not  sufficient  to  enable  the  court  to  case.     But  see  contra,  Bed  River  Co. 

intelligently     determine     the    relative  v.  Wright,  30  Minn.  249,  44  Am.  Eep. 

rights  of   Baldwin  on  the   one  hand,  194»  15  N.  W.  167,  holding  the  upper 

and  those  of  the  remaining  parties  on  owner  *°  have  Burden  of  proving  his 

the     other,    in    the    waters    of     this  "se  to  be  reasonable, 

river.     Under  such  circumstances,  the  "  gg«*  sec-  8}4  et  Se1-  „ 

trial    ronrt   did    all   that   it   Drooerlv  Miller  v.  Madera    etc.    Co.,  155 

•  criai    court    aid    an    mat    IT,    properiy        ~  ,        Q      QQ    _  ' 

could    do,    by    determining    that    the  J*1^  5y3'gi"    ^ac'    502'  2  <  L-  R-  A., 

various  parties  were  riparian  owners  ^   wng              95                       . 

and  leaving  the  question  or.  the  pro-  Q^J 

portions  of  the  water  to  which  each  2i  Chasemore  v.  Eichards,  7  H.  L. 

is   entitled  to  be   determined   m   the  Cas    349j  n  Eng   Reprint.  140,  Lord 

future."     See,  contra,  Eogers  v.  Over-  Wensleydale.     See,    also,    Richards  v. 

acker,  4  Cal.  App.  333,  87  Pac.  1107,  Hill,   5    Mod.    206,   87   Eng.   Eeprint, 

overlooking    the    distinction    between  611. 

apportionment  and  other  relief  for  a  22  Smith  v.  Hawkins,  127  Cal.  119, 

riparian  owner.  59  Pac.  295. 


§  884     Ch.  38.     PROCEDURE  UNDER  RIPARIAN  SYSTEM.     (3d  ed.)  929 


through  which  a  stream  flows  sufficiently  alleges  riparian  rights.23 
The  complaint  or  declaration  must  allege  that  lands  are  riparian  or 
that  a  stream  passes  by  or  through  them.24  Averments  of  owner- 
ship and  possession  of  riparian  land  or  of  land  by  or  through  which 
the  stream  flows,  sufficiently  allege  the  riparian  right.25  The 
riparian  owner  need  not  allege  that  he  is  using  the  water,1  nor  that 
the  nonriparian  use  is  unreasonable.2 

There  are  decisions  to  the  contrary.  The  chief  of  these  is  River- 
side W.  Co.  v.  Gage,3  quoted  elsewhere.4  So  far  as  such  decisions 
hold  that  a  riparian  owner  must  plead  and  prove  against  a  non- 
riparian  owner  the  same  things  as  in  a  suit  for  apportionment  with 
another  riparian  owner,  they  are  superseded  by  the  decision  in 
Miller  v.  Madera  Co.  on  rehearing.5  So  far,  however,  as  they  re- 
quire the  riparian  owner  only  to  allege  and  prove  what  quantity 
of  water  "is  or  may  be  beneficial  to  his  land,"  it  may  be  that  they 
do  not  necessarily,  as  already  discussed,  conflict  with  that  case.6 

There  is,  then,  this  same  conflict  in  procedure  which  we  set  forth 
above  as  to  substantive  law.  If  the  qualification  that  the  riparian 
owner  can  have  an  action  only  for  water  "which  is  or  may  be  bene- 
ficial to  his  land,"  is  correct,  then  Riverside  W.  Co.  v.  Gage  is  not 
necessarily  incorrect,  though  it  would  seem  that  the  burden  of  alleg- 
ing and  proving  such  qualification  would  be  properly  upon  the  non- 
riparian  owner,7  and  therefore  matter  for  answer  and  proof  by 
defendant,  not  the  plaintiff, 


23  Leigh  v.  D.  Co.,  8  Cal.  323,  12 
Morr.  Min.  Rep.  97. 

24  Silver  Creek  etc.  Co.  v.  Hayes, 
113  Cal.  142,  45  Pac.  191. 

25  Shotwell  v.  Dodge,  8  Wash.  337, 
36  Pac.  254;  Rincon  etc.  Co.  v.  Ana- 
heim etc.  Co.,  115  Fed.  543.     Contra, 
Lobdell   v.   Simpson,   2   Nev.   274,   90 
Am.  Dec.  537. 

1  Supra,  sec.  816. 

2  Supra,  sec.  817. 

3  89  Cal.  410,  26  Pac.  889. 

4  Supra,    sec.    822.     For    example, 
where  a  riparian  owner  was  contesting 
with  a  nonriparian  owner,  it  has  been 
held:   "Appellant's  claim  to  the  waters 
as  a  riparian    owner    is    not  pressed 
with    much    seriousness,   and    this  is 
natural,  considering  that  there  is  no 
pleading  as  to  his  riparian  need  for 
use  of  these  waters,  either  as  to  quan- 

Water  Rights — 59 


tity  or  amount  of  land  upon  -which 
they  are  to  be  employed."  Montecito 
etc.  Co.  v.  Santa  Barbara  (1907),  151 
Cal.  377,  90  Pac.  935,  citing  Riverside 
Water  Co.  v.  Gage,  89  Cal.  410,  26 
Pac.  889.  See  likewise  Wutchumna 
W.  Co.  v.  Pogue,  151  Cal.  105,  90  Pac. 
362;  San  Luis  W.  Co.  v.  Estrada,  117 
Cal.  168,  48  Pac.  1075.  For  other 
cases  seeming  to  apply  this  rule  be- 
tween a  riparian  and  a  nonriparian 
owner  as  well  as  between  riparian 
owners,  see  Morris  v.  Bean  (Mont.), 
146  Fed.  431;  McCook  Irr.  Co.  v. 
Crews,  70  Neb.  115,  102  N.  W.  249. 

5  155  Cal.  59,  99  Pac.  502. 

6  Supra,  sec.  827  et  seq. 

7  Miller  v.  Bay  Cities  Co.,  157  Cal. 
256,  107  Pac.  115;  Huffner  v.  Sawday, 
153  Cal.  86,  94  Pac.  424.     See  supra, 
see.  832. 


930  (3d  ed.)    Pt.  IV.    THE  COMMON  LAW  OF  RIPARIAN  RIGHTS.    §  885 

Our  conclusion  is  that  allegation  and  proof  that  a  stream  runs 
by  plaintiff's  land  is  sufficient  against  a  nonriparian  owner,  but  that 
the  nonriparian  owner  may  set  up  in  his  answer  as  an  affirmative 
defense  (of  which  the  burden  of  proof  is  emphatically  upon  him)1 
that  the  water  diverted  is  not,  and  cannot  be  in  the  future,  beneficial 
to  the  riparian  land,  in  the  extreme  case  upon  large  streams  where 
the  facts  may  support  such  claim. 

(3d  ed.) 

§  885.  Pleading  (Continued). — One's  right  as  riparian  pro- 
prietor cannot  be  considered  when  not  alleged  in  the  pleadings.8 
But  it  is  sufficient  to  allege  the  facts  showing  that  one  is  a  riparian 
owner,  from  which  the  claim  as  riparian  owner  may  be  inferred, 
without  using  that  specific  term.9  The  acts  of  a  defendant  riparian 
proprietor  must  be  alleged  to  be  unreasonable.10  How  far  the  above 
is  insufficient  in  bills  in  equity  for  apportionment,  see  preceding 
sections;  likewise  as  to  how  far  it  applies  at  all  to  nonriparian 
owners. 

Whatever  may  be  the  rule  as  to  alleging  possibility  or  capacity 
for  future  use,  it  is  well  settled  that  averments  of  actual  present 
use  are  surplusage  both  in  suits  between  riparian  owners  and  in 
suits  against  a  nonriparian  owner.  As  against  a  nonriparian  owner, 
the  plaintiff  riparian  owner  is  entitled  to  the  whole  flow  which  is  or 
may  be  beneficial  to  his  land ;  as  against  another  riparian  owner,  to 
a  reasonable  proportion  thereof;  in  both  cases,  whether  actually 
using  the  water  or  not.11 

(3d  ed.) 

§  886.    Actions  at  Law. — As  damages  at  law  are  compensatory 
only,  where  the  water  is  not  used  by  the  complaining  riparian 
owner,  his  damages  from  an  excessive  use  of  another  riparian  owner 
(or  for  use  by  a  nonriparian  owner)  will  be  nominal  only,12  for  he. 
suffers  no  actual  damage  and  the  action  stops  the  running  of  any 

8  Smith  v.  Hawkins,  127  Cal.  119,  »  Strong    v.  Baldwin    (1908),    154 

59    Pac.    295;    Riverside  W.   Co.    v.  gal.   150>   129   Am-   St-   ^P-   14^   97 

Gage,    89    Cal.    410,    26    Pac.    889;  ac<  178> 

Wutchumna  W.  Co.  v.  Pogue,  151  Cal.  ^'p^V   G°°drieh'   7°   CaL   103> 

105,   90   Pac.   362;    Montecito   Co.   v.  „  Su        ' se^  801    et             816  et 

Santa  Barbara,  151  Cal.  377,  90  Pac.  Seq.,  861. 

935;    San   Luis    Co.    v.    Estrada,    117  12  Creighton  v.  Evans,  53  Cal.  55,  a. 

Cal.  168,  48  Pac.  1075.  Morr.  Min.  Rep.  123. 


§  887     Ch.  38.     PROCEDUBE  UNDER  RIPARIAN  SYSTEM.     (3d  ed.)  931 

prescription  and  prevents  the  wrong  from  ripening  into  a  right. 
This  is  a  principle  well  recognized. 

The  riparian  proprietor  cannot  recover  damages  for  injury  the 
diversion  does  to  his  nonriparian  land.13  Nor  can  a  nonriparian 
proprietor  recover  for  injury  done  to  his  use  by  riparian  use  of  a 
riparian  owner.14 

To  the  fuller  presentation  of  the  matter  of  damages  given  in  a 
preceding  chapter,15  we  add  that  while  a  riparian  owner  is  entitled 
to  an  injunction  or  nominal  damages,  in  certain  cases  elsewhere  set 
forth,  though  he  is  not  using  the  water,16  yet  he  can  recover  no 
special  damage  when  not  using  the  water,17  nor  can  he  sue  for  the 
value  of  the  water  at  so  much  per  inch  or  gallon.18 

(3d  ed.) 

§  887.  Judgment  or  Decree. — A  count  alleging  a  right  as  ap- 
propriator  will  not  support  a  judgment  as  riparian  owner.19  If  a 
decree  assigns  use  on  nonriparian  lands,  it  shows  that  the  court  was 
dealing  with  rights  of  appropriation  and  not  riparian  rights.20  The 
decree  may  enforce  the  distinction  between  natural  and  artificial 
uses,  and  be  drawn  accordingly.21  "It  must  be  remembered  that 
no  injunction  can  be  awarded  which  can  deprive  the  defendant  of 
the  reasonable  use  of  the  water  for  domestic  purposes  and  for  the 
support  of  life."  w  A  decision  under  the  law  of  appropriation  does 
not  necessarily  have  any  bearing  under  the  law  of  riparian  rights.23 
Where  a  decree  restraining  defendant 's  predecessor  in  interest  from 
diverting  water  from  a  creek  above  plaintiff's  land  was  based  on 
the  latter 's  riparian  rights,  it  would  not  protect  any  rights  based 
on  prior  appropriation  now  claimed  by  him  against  defendant.24 

Where  it  did  not  appear  that  the  defendant  therein  owned 
any  land,  or  as  to  what  land  he  was  restrained  from  diverting 

is  Heinlein   v.   Fresno   etc.   Co.,   68  20  Wutchumna  Water  Co.  v.  Pogue, 

Cal    35,  8  Pac.  513.  151  Cal.  105,  90  Pac.  362. 

H  Supra,  sees.  847.  861.  _  21  F°r  such  a  decree   see  Union  etc. 

„_    _,a  Co.  v.  Dangberg,  81  Fed.  73. 

IB  Supra,  sees.  637,  638.  22  Stanford  v.  Felt,  71  Cal.  249,  16 

16  Supra,  sees.  801,  816.  pac.  900.     See,  also,  Hough  v.  Porter, 

"  Clark   v.    Pennsylvania    Ry.    Co.,  51  Or.  318,  95  Pac.  732,  98  Pac.  1083, 

145  Pa.  438,  27  Am.  St.  Rep.  710,  22  102  Pac.  728. 

\tl    990  23  Turner     v.     James     Canal     Co. 

.  „.„  (1909),   155    Cal.    82,    132    Am.   St. 

is  Ibid.,  and  Stock  v.  City  of  Hills-  £        £A     QQ    pae     KOQ    99  T,    R    A 

dale  (1909),  155  Mich.  375,  119  N.  W.  S  PS.    40i;  17  Ann.  Cas.  82^             ' 

435.  at  438,  439.  24  Davig  v    chamberlain  (1909),  51 

19  Supra,  sec.  634.  Or.  304,  98  Pac.  154. 


932  (3d  ed.)    Pt.  IV.    THE  COMMON  LAW  OF  EIPARIAN  EIGHTS.    §  887 

the  water,  the  decree  was  personal,  and  there  could  be  no  successor 
in  interest  of  the  defendant  therein  whom  it  could  affect.25 

Other  matters  will  be  found  in  the  general  chapter  upon  pro- 
cedure.1 

25  Ibid.  1  Supra,  see.  639  et  seq. 

§§  888-896.    (Blank  numbers.) 


897,  898    Ch.  39.    MISCELLANEOUS  RIPARIAif  RIGHTS.    (3d  ed.)  933 


CHAPTER  39. 
MISCELLANEOUS  RIPARIAN  RIGHTS. 

5  897.    Introductory. 

A.     NAVIGABLE   WATERS. 
§  898.     Shores  and  bed  of  navigable  waters. 
§  899.     Public  rights  in  navigable  streams. 
§  900.     Public  authority  over  navigation. 

B.    ACCRETION  AND  BOUNDARIES. 
§  901.     Accretion.' 
§  902.     Islands. 
§  903.     Boundaries. 

C.     WHARFAGE  AND  OTHER  RIPARIAN  OR  LITTORAL  RIGHTS. 
§  904.     Access. 
§  905.     Wharfage,  etc. 

§  906.     Other  riparian  rights  in  navigable  waters. 
§  9t)7.     Fishing. 
§§  908-1006.     (Blank  numbers.) 

(3d  ed.) 

§  897.  In  the  following  chapter  such  matters  and  authori- 
ties are  presented  as  were  collected  in  preparing  the  other  parts  of 
the  book. 


A.     NAVIGABLE  WATERS. 
(3d  ed.) 

§  898.  Shores  and  Beds  of  Navigable  Waters. — In  the  civil 
law,  the  shores  of  the  sea  and  the  beds  of  navigable  streams  were 
"common"  and  ports  (or  navigation)  were  "public."1  In  Eng- 
land, though  Lord  Hale  observed  that  in  exceptional  cases  the  beds 
of  navigable  streams  may  be  private,2  yet  it  is  the  rule  that  they 
belong  prima  facie  to  the  crown.3 

l  Authorities  quoted    supra,    sec.  2  2  Lord    Cairns    in    Lyon    v.    Fish- 

et  seq. ;  infra,  sec.  1025.     "Et  quiclem  mongers'  Co.,  supra,  sec.  698. 

natural!  jure,  communia  sunt  omnium  3  Hale's  De  Jure  Maris,  cap.  in,  a 

haec ;  aer  et  aqua  profluens,  et  mare,  work  which  has  been  said  "to  have  ex- 

et  per  hoc,  littora  maris."     Institutes  hausted  the  learning  on  the  subject" 

of  Justinian,    lib.    2,    tit.   1,   sec.    1.  of  which  it  treats.     Wholey  v.  Cald- 

Another    passage     in     the    Institutes  well,  108  Cal.  95,  at  100,  49  Am.  St. 

gays,   "Flumina  autem  omnia   et  por-  Rep.  64,  41  Pac.  31,  30  L.  R.  A.  820. 

tus  publica  sunt."  The  work  is  reprinted  in  16  Am.  Rep. 


934  (3d  ed.)    Pt.  IV.    THE  COMMON  LAW  OF  RIPARIAN  RIGHTS.    § 


In  this  country  the  English  rule  usually  prevails;  the  title  to  the 
bed  of  navigable  streams  being  prima  facie  in  the  State  in  trust  for 
the  public  in  navigation  and  other  uses,  as  public  highways.4  And 
also  as  to  tide  waters.5  However,  in  some  States  the  riparian 
owners  are  held  to  own  ad  medium  filum  even  on  navigable  streams, 
subject  to  the  public  right  of  navigation.6 

Which  rule  prevails  in  any  given  jurisdiction  is  a  matter  of  local 
law.  In  a  case  of  wharfing  out,  the  United  States  supreme  court 
said:  "The  rights  of  a  riparian  owner  upon  a  navigable  stream  in 
this  country  are  governed  by  the  law  of  the  State  in  which  the 
stream  is  situated.  These-  rights  are  subject  to  the  paramount  pub- 
lic right  of  navigation. ' ' 7  This  was  established  in  Pollard  v. 


54.  In  another  work  Lord  Hale 
says:  "Those  things  that  are  juris 
publiti  are  such  as,  at  least  in  their 
own  use,  are  common  to  all  the  King's 
subjects;  and  are  of  these  kinds,  viz., 
common  highway,  common  bridges, 
common  rivers,  common  ports,  or 
places  for  arrival  of  ships.  And  this 
lets  in  the  various  learning  touching 
those  things."  Analysis  of  the  Civil 
Part  of  the  Law,  by  Sir  Matthew 
Hale. 

4  Cal.  Pol.    Code,    sees.  2349,  2875, 
3479;   Cal.  Civ.  Code,  see.  670;  Green 
T.  Swift,  47  Cal.  536;  Wright  v.  Sey- 
mour,  69     Cal.     122,     10    Pac.    323; 
Packer  v.  Bird,  71  Cal.  134,  11  Pac. 
87?;  Cardwell  v.  Sacramento,  79  Cal. 
347,  21  Pac.  763;  Foss  v.  Johnstone, 
15*  Cal.  119,  110  Pac.  294;  Messenger 
v.   Kingsbury    (Cal.   1910),   112   Pac. 
6?;'Kregar  v.  Fogarty,  78  Kan.  541, 
%  Pac.  847;  Mont.  Rev.  Stats.  1907, 
sec.  4840;   State  v.  Portland  etc.  Co., 
52  Or.  502,  95  Pac.  722,  98  Pac.  160; 
Johnson  v.  Knott,  13  Or.  308,  10  Pac. 
418;   Coquille  Co.  v.  Johnson,  52  Or. 
547,   132   Am.   St.   Rep.   716,   98   Pac. 
132;    Palmer  v.   Peterson    (1909),  56 
Wash.   74,   105   Pac.   179.     "The   doc- 
trine is  founded  upon  the  necessity  of 
preserving   to   the   public   the   use   of 
navigable  waters   from  private  inter- 
ruption and  encroachment,"  says  Mr. 
Justice  Field  in  Illinois  C.  R.  Co.  v. 
Illinois,   146  U.   S.   387,   13   Sup.   Ct. 
Rep.  110,  36  L.  ed.  1018.     The  title  is 
not    in    the    United    States.     United 
States   v.   Bevan,    3   Wheat.     391,    4 
L.  Ed.  417. 

5  The     State     of     California     has 
absolute    property   in    the    soil   under 


tide  water  within  her  limits.  United 
States  v.  Mission  Rock  Co.,  189  U.  S.  > 
391,  23  Sup.  Ct.  Rep.  606,  47  L.  Ed. 
865.  And  likewise  as  to  the  soil  un- 
der navigable  rivers  such  as  the  Sacra-  I 
mento.  Packer  v.  Bird,  137  U.  S.  661, 
11  Sup.  Ct.  Rep.  210,  34  L.  Ed.  819. 
By  an  exception  in  Massachusetts,  by 
the  old  colonial  ordinance  of  1647, 
still  in  force,  the  owner  of  the  upland 
owns  the  foreshore  to  low-water  mark 
(if  not  over  one  hundred  rods  from 
high-water  mark),  and  in  Rhode 
Island  the  law  is  similar  by  a  statute 
passed  in  1707.  Shively  v.  Bowlby, 
152  U.  S.  1,  14  Sup.  Ct.  Rep.  548,  38 
L.  Ed.  331.  See,  also,  Head  v.  Amos- 
keag  Mfg.  Co.,  113  U.  S.  9,  5  Sup. 
Ct.  Rep.  441,  28  L.  Ed.  889.  Rundle 
v.  Delaware  &  Raritan  Canal  Co.,  14 
How.  81,  14  L.  Ed.  335;  Home  of 
Aged  v.  Commonwealth  (1909),  202 
Mass.  422,  98  N.  E.  124. 

6  Bed   of   navigable  streams   above 
tide  ebb  and  flow,  is  in  riparian  pro- 
prietor ad  medium  filum  and  not  in 
the   State,    in    Nebraska,    subject   to 
public  easement  of  navigation.     Kin- 
kead   v.    Turgeon,   74   Neb.    580,    104 
N.  W.  1061,  109  N.  W.  744,  1  L.  R. 
A.,  N.  S.,  762,  13  Ann.  Cas.  43.     Like- 
wise  in   Idaho.     Johnson  v.    Johnson, 
14  Idaho,  561,  95  Pac.  499,  24  L.  R. 
A.,  N.   S.,   1240;   Lattig  v.   Scott,   17 
Idaho,  506,  107  Pac.  47. 

7  Weems  etc.  Co.  v.  People's  etc.  Co. 
(1909),   214  U.   S.   345,   29   Sup.   Ct. 
Rep.    661,    53    L.  Ed.  1024.     Accord, 
Whitaker  v.  McBride,  197  U.  S.  510, 
25  Sup.  Ct.  Rep.  530,  49  L.  Ed.  857, 
Los  Angeles  etc.  Co.  v.  Los  Angeles, 
217  U.  S.  217,  30  Sup.  Ct.  Rep.  452. 


Ch.  39.     MISCELLANEOUS  RIPARIAN  RIGHTS.     (3d  ed.)   935 


Hagan,  a  case  involving  the  question  of  title  to  certain  lands  in 
Mobile,  Alabama,  which  had  originally  been  below  high-water  mark, 
but  had  been  reclaimed  and  improved.8  The  case  aroused  high  feel- 
ing in  the  North  at  the  time,  having  been  taken  as  a  decision  in 
favor  of  the  doctrine  of  "State  rights,"  which  was  then,  prior  to 
the  war,  at  its  height.9  Pollard  v.  Hagan  was  approved  in  Shively 
v.  Bowlby,10  and  has  been  repeatedly  reaffirmed  since  and  become 
settled  law.11 


8  Pollard  v.  Hagan,  3  How.  212,  11 
L.  Ed.  565. 

9  Upon    similar    lines    the  supreme 
court     decided     in     favor    of    "State 
rights"  in  Kansas  v.  Colorado,  supra, 
sec.  182;  but  the  question  in  the  lat- 
ter case  involving  public  land  had  a 
history  of  its  own  independent  of  the 
present  one,   which  half   the   Western 
States  regard  as  making  it  a  different 
question. 

10  Mr.   Justice  Gray,  in   Shively  v. 
Bowlby  (152  U.  S.  1,  26,  27,  14  Sup. 
Ct.  Rep.   548,  38   L.  Ed.  331),  says: 
"In    Pollard    v.    Hagan    (1844),    this 
court,   upon   full  consideration    (over- 
ruling anything    to    the    contrary    in 
Pollard  v.  Kibbe,  14  Pet.  353,  10  L. 
Ed.   490,    Mobile   v.    Eslava,    16    Pet. 
234,  10  L.  Ed.  948,  Mobile  v.  Hallett, 
16  Pet.  261,  10  L.  Ed.  958,  Mobile  v. 
Emanuel,-!   How.   95,   11  L.   Ed.   60, 
and  Pollard  v.  Files,  2  How.  591,  11 
L.  Ed.  391),  adjudged  that  upon  the 
admission   of   the   State   of   Alabama 
into  the  Union  the  title  in  the  lands 
below   high-water   mark   of   navigable 
waters  passed  to  the  State." 

11  The  title  and  rights  of  riparian 
or  littoral  proprietors  in  the  soil  be- 
low high-water  mark  are  governed  by 
the  laws  of  the  various  States.     Kan- 
sas v.  Colorado,  206  U.  S.  46,  27  Sup. 
Ct.  Rep.  655,  51  L.  Ed.  956;  Hardin 
v.  Jordan,  140  U.  S.  371,  11  Sup.  Ct. 
Rep.  808,  838,  35  L.  Ed.  428;  With- 
ers  v.    Buckley,    20    How.    84,    15   L. 
Ed.  816;  United  States  v.  Rio  Grande 
Dam   &   Irr.   Co.,   174  U.   S.   690,   19 
Sup.   Ct.   Rep.   770,   43  L.   Ed.   1136; 
Gutierres   v.    Albuquerque    Land    Co., 
188  U.  S.  545,  23  Sup.  Ct.  Rep.  338, 
47  L.  Ed.  588;  Martin  v.  Wadell,  16 
Pet.    367,    10    L.    Ed.    997;    Huse    v. 
Glover,  119  U.  S.  546,  7  Sup.  Ct.  Rep. 
313,     30    L.   Ed.    487;    St.   Louis   v. 
Meyers,    113    U.    S.    566,    5    Sup.    Ct. 


Rep.  640,  28  L.  Ed.  1131;  Barney  v. 
Keokuk,  94  U.  S.  324,  24  L.  Ed.  224; 
Strader  v.  Graham,  10  How.  82,  13 
L.  Ed.  337;  The  Montello,  20  Wall. 
430,  22  L.  Ed.  391 ;  Boquillas  Cattle  Co. 
v.  Curtis,  213  U.  S.  339,  29  Sup.  Ct. 
Rep.  493,  53  L.  Ed.  822;  St.  Anthony 
Falls  Water  Power  Co.  v.  Water  Com- 
missioners, 168  U.  S.  349,  18  Sup.  Ct. 
Rep.  157,  42  L.  Ed.  497;  Goodlittle 
v.  Kibbe,  9  How.  471,  13  L.  Ed.  220; 
Packer  v.  Bird,  137  U.  S.  661,  11  Sup. 
Ct.  Rep.  210,  34  L.  Ed.  819;  Kean  v. 
Calumet  Canal  Co.,  190  U.  S.  452,  23 
Sup.  Ct.  Rep.  651 ;  Kaukauna  Water 
Power  Co.  v.  G.  B.  &  "M.  Canal  Co., 
142  U.  S.  254,  12  Sup.  Ct.  Rep.  173, 
35  L.  Ed.  1004;  Whitaker  v.  McBride, 
197  U.  S.  510,  25  Sup.  Ct.  Rep.  530, 
49  L.  Ed.  857;  Weems  etc.  Co.  v. 
People's  etc.  Co.  (1909),  214  U.  S. 
345,  29  Sup.  Ct.  Rep.  661,  53  L.  Ed. 
1024;  Lowndes  v.  Huntington,  153 
U.  S.  30,  14  Sup.  Ct.  Rep.  758,  38  L. 
Ed.  623;  Jackson  v.  Chew,  12  Wheat. 
168,  6  L.  Ed.  589;  Green  v.  Neal,  6 
Pet.  296,  8  L.  Ed.  404;  Webster  v. 
Cooper,  14  How.  504,  14  L.  Ed.  517; 
Carrol  Co.  v.  United  States,  18  Wall. 
82,  21  L.  Ed.  775 ;  McArthur  v.  Scott, 
113  U.  S.  340,  5  Sup.  Ct.  Rep.  652, 
28  L.  Ed.  1015;  St.  Louis  v.  Rutz, 
138  U.  S.  226,  11  Sup.  Ct.  Rep.  337, 
34  L.  Ed.  941.  In  McKeen  v.  De- 
lancy,  9  U.  S.  (5  Cranch)  22,  3  L. 
Ed.  25,  Marshall,  C.  J.,  said:  "But  in 
construing  the  statutes  of  a  State  on 
which  land  titles  depend,  infinite  mis- 
chief would  ensue  should  this  court  ob- 
serve a  different  rule  from  that  which 
has  been  long  established  in  the 
State."  Martin  v.  Waddell,  16  Pet. 
367,  10  L.  Ed.  997,  has  been  said  to 
be  the  first  case  in  which  it  was  con- 
tended in  the  United  States  supreme 
court  that  the  decisions  of  the  State 
courts  should  control. 


936  (3d  ed.)    Pt.  IV.    THE  COMMON  LAW  OF  RIPARIAN  RIGHTS.    §  899 
Streams  floatable  for  logs  are  public  highways.12 
(3d  ed.) 

§  899.  Public  Rights  in  Navigable  Streams. — The  right  of  the 
public  in  navigable  streams  is  to  use  them  as  highways;  that  is,  an 
easement.  ' '  The  right  of  navigation  is  simply  a  right  of  way. ' ' 1S 
Only  the  State  or  someone  injured  in  navigation  can  object  to  acts 
done  upon  a  navigable  stream  on  the  ground  of  interference  with 
the  navigation.14  Such  acts  are  a  public  nuisance,  and  no  prescrip- 
tive right  can  arise  to  impede  navigation.15  Deposit  into  a  navi- 
gable stream,  by  a  hydraulic  mining  company,  of  debris  consisting 
of  gravel,  sand  and  other  refuse  to  the  impairment  of  navigation 
constitutes  a  public  nuisance,  the  right  to  continue  which  cannot  be 
acquired  by  priority  or  prescription,  so  as  to  bar  a  proceeding  in- 
stituted by  the  attorney  general  in  the  name  of  the  people  to  compel 
a  discontinuance  of  the  acts  which  constitute  the  nuisance ; 1G  or  at 
suit  of  a  private  person  suffering  special  damage.17  So  of  sawdust, 
chips,  bark,  and  other  sawmill  refuse  deposited  in  a  harbor.18 


12  Kamm  v.  Normand,  50  Or.  9,  126 
Am.  St.  Rep. '698,  91  Pac.  448,  11  L. 
R;  A.,  N.  S.,  290;   Falls  Mfg.  Co.  v. 
Oconto   etc.  Co.,   87   Wis.   134,  58   N. 
W.   257.     As  to  what  is  a  navigable 
stream,   see    Kregar    v.    Fogarty,   78 
Kan.  541,  96  Pac.  845;   State  ex  rel. 
Pealer  v.   Superior  Ct.    (Wash.),   109 
Pac.     340.     Regarding    logging,     see, 
also,    Potlach    Co.     v.     Peterson,     12 
Idaho,  769,  118  Am.  St.  Rep.  2.53,  88 
Pac.  426;    Flinr   v.  Vaughan    (Or.), 
106   Pac.   642;    State   ex   rel.   Uniteu 
Tanners    etc.    Co.    v.    Superior    Court 
(Wash.),  110  Pac.  10] 7. 

13  Orr  Ewing  v.  Colquhoun,  2  App. 
Cas.  846. 

14  Miller  v.  Enterprise  Co.,  142  Cal. 
208,  75  Pac.  770;   Davenport  v.  Ren- 
wick,   102   U.   S.   180,   26  L.   Ed.  51;. 
United  States  v.  Rio  Grande  etc.  Co., 
174  U.  S.  690,  19  Sup.  Ct.  Rep.  770, 
43  L.  Ed.   1136.    • 

is  Supra,  sec.  528,  pollution.  See 
Cal.  Stats.  1909,  c.  93;  Trullinger  v. 
Howe,  53  Or.  219;  97  Pac.  548,  99 
Pac.  880,  22  L.  R.  A.,  N.  S.,  545.  A 
dam  or  any  other  obstruction  to  navi- 
gation is  a  public  nuisance,  and  no 
lapse  of  time  will  bar  the  right  of  the 
public  to  remove  it.  Charnley  v. 
Shawana  Water  Power  &  Imp.  Co., 


109  Wis.  563,  85  N.  W.  507,  53  L. 
R.  A.  895;  Southern  Ry.  Co.  v.  Fer- 
guson, 105  Tenn.  552,  80  Am.  St. 
Rep.  908,  59  S.  W.  343;  Vooght  v. 
Winch,  2  Barn.  &  Aid.  662;  Renwick 
v.  Morris,  7  Hill,  575;  Olive  v.  State, 
86  Ala.  88,  5  South.  652,  4  L.  R.  A. 
33;  Crill  v.  Rome,  47  How.  Pr.  406; 
Dyer  v.  Curtis,  72  Me.  181.  Obstruc- 
tion of  the  passage  of  fish  to  an  in- 
land lake,  State  v.  Franklin  Falls  Co., 
49  N.  H.  240,  fi  Am.  Rep.  513;  or  up 
a  stream,  State  v.  Roberts,  59  N.  H. 
256,  47  Am.  Rep.  199 ;  or  a  dam  and 
mil]  or  refjige  therefrom  preventing 
the  floating  of  logs  down  a  stream 
capable  thereof,  Collins  v.  Howard,  65 
N.'  H.  190,  18  Atl.  794;  Knox  v. 
Chanoler,  42  Me.  150;  Veazie  v. 
Dwinel,  50  Me.  497. 

16  People  v.  Gold  Run  Ditch  &  Min- 
ing Co.,  66  Cal.  138,  56  Am.  Rep.  80, 
4  Pac.  1152. 

17  Debris  Cases,  18  Fed.  752;  supro, 
sec.  528. 

18  Ogdensburg  v.  Lovejoy,  2  Thomp. 
&   C.    82,    58    N.   Y.     662.     But   see 
Atty.    Gen.    ex   rel.    Mann   v.    Revere 
Copper  Co.,  152  Mass.  444,  25  N.  E. 
605,    9    L.   R.   A.    510;     Chicago   v. 
Laflin,  49  111.  172. 


§  900  Ch.  39.     MISCELLANEOUS  RIPARIAN  RIGHTS.     (3d  ed.)  937 

California  was  admitted  into  the  Union  .in  1850  and  the  act  for 
admission  of  September  9th19  provides:  "That  navigable  waters 
are  declared  common  highways  and  forever  free  to  the  inhabitants 
of  the  State  and  citizens  of  the  United  States  without  any  tax,  im- 
post, or  duty  therefor." 

(3d  ed.) 

§  900.    Public    Authority    Over    Navigation. — Congress    has, 

under  the  interstate  commerce  clause  of  the  Federal  constitution, 
complete  power  over  navigable  waters  of  the  United  States  in  the 
interest  of  commerce,  and  may  declare  what  structures  or  obstruc- 
tions may  be  permitted  or  prohibited.20  Congress  can  authorize  a 
bridge  across  navigable  waters  without  concurrence  of  the  State,21 
or  the  construction  of  a  bridge  within  the  limits  of  a  State  which 
has  not  consented  to  but  has  protested ; 22  or  can  order  the  removal 
of  a  bridge  as  an  obstruction  to  navigation  although  wholly  within 
the  limits  of  a  State,  which  State  authorized  its  construction.23  An 
act  of  Congress  may  legalize  a  bridge  so  far  as  concerns  a  contract 
between  two  States  that  the  navigation  of  the  river  shall  remain 
free  and  unobstructed,24  or  a  similar  provision  in  a  treaty  with  a 
foreign  power.25  The  Federal  Dam  Act  of  1910  is  given  in  the 
collection  of  statutes  in  Part  VIII,  below. 

In  the  absence  of  action  by  Congress,  the  State  has  the  right  to 
improve  a  navigable  river  for  the  purpose  of  navigation.  It  may 
do  this  itself  or  it  may  delegate  to  another  the  authority  to  do  so. 
No  private  party  or  company  can  acquire  the  right,  by  filing  articles 
of  incorporation  without  express  delegation  of  authority  from  the 
State,  either  to  improve  navigation  or  to  collect  tolls  for  the  use  of 
such  improvements,  even  when  such  a  purpose  is  specified  in  those 
articles.1  The  State  may  impose  charges  on  the  franchise.2 

19  9  Stat.  453.  Co.,  1  Inters.  Com.  Rep.  411,  32  Fed. 

,,2<^IJrilt1ei^atoefoV-?0rtb?100™fie,M       9'22  Pennsylvania    R.    Co.    v.    Haiti- 

£•  C°-'41uF^-        }  P£??rlV*Siaeft       more  &  N.  Y.  R.  Co.,  37  Fed.  129. 
Co.  v.  Wheeling  etc    Bridge   Co,   18  23  United  gtateg  v>'ci        f  M  u 

How.  421,   15  L.  Ed.   435;    Miller  v.  Ro  ppfi    KQO 

Sw  Y°Jk'T13.tBlatchf.  469  Fed.  Cas.  ^Pennsylvania  etc.  Co.  v.  Wheel- 
No.  9o8o;  United  States  v  Milwaukee  .  t  B/}d  Q  lg  R  421  lg 
etc.  Co,  5  Biss.  410,  Fed.  Cas.  No.  L  Ed  435 

15,778;   New  Port  etc.  Co.  v.  United          '^  ^      C]inton    Bridee     Fed    Cas 

States,  105  U.  8   470,  26  L   Ed    1143 ;  No     ™J    1  Woolw    150g  ' 

Jfa£m«£  ^  ^       rf  *        Si  •  S  1  State   v-   Portland    etc.    Co,    52 

?•£,  5%  U  SUP>  Ct        P'         '  Or.   502,   95    Pac.    722,   98    Pac.   160. 

L.  Ed.  808.  See  Wagh 

21  Stockton  v.  Baltimore  &  N.  Y.  R.  3  Ibid. 


938  (3d  ed.)    Pt.  IV.    THE  COMMON  LAW  OF  RIPARIAN  RIGHTS.    §  901 

B.     ACCRETION  AND  BOUNDARIES. 
(3d  ed.) 
§  901.     Accretion. — Accretion  is   the   slow   and   imperceptible 

addition  of  alluvial  deposit  on  the  margin  of  a  body  of  water ;  avul- 
sion is  the  formation  of  dry  land  by  a  sudden  and  quick  change 
in  the  permanent  position  of  the  body  of  water.3  These  distinctions 
have  come  into  the  common  law  from  the  civil  law.  It  has  been 
expressly  said :  ' '  Our  law  may  be  traced  back  through  Blackstone,4 
Hale,5  Britton,6  Fleta,7  and  Bracton,8  to  the  Institutes  of  Justinian,9 
from  which  Bracton  evidently  took  his  exposition  of  the  subject."  10 

Accretions  must  be  the  imperceptible  or  gradual  additions  to  the 
plaintiff's  lands,  or  the  gradual  receding  of  the  river  therefrom. 
If  the  accretions  were  to  an  island  on  the  south  side,  and  to  the 
main  land  on  its  north  side,  and  by  a  change  of  the  river  they  were 
thus  brought  together,  such  a  union  of  the  two  tracts  did  not  make 
the  island  an  accretion  to  the  main  land.11  "An  accretion  to  land 
is  the  imperceptible  increase  thereto  on  the  bank  of  a  river  by 
alluvion  occasioned  by  the  washing  up  of  sand  or  earth,  or  by  derelic- 
tion as  when  the  river  shrinks  back  below  the  usual  water  mark; 
and  land  so  formed  by  addition  belongs  to  the  owner  of  the  land 
immediately  behind  it. ' ' 12 

The  change  must  be  permanent;  the  doctrine  of  accretion  does 
not  apply  to  land  alternately  above  and  under  water,  so  long  as  the 
water  substantially  retains  its  old  boundaries.13  A  riparian  owner 

3  See,  as  to  accretions,  alluvion,  and  10  Lindley,    L.    J.,    in    Foster    v. 

boundaries,  Cal.  Civ.  Code,  sees.  830,  Wright,  4  C.  P.  D.  438. 

1014,  1015,  and  Code  Civ.  Proc.,  sec.  n  Hahn  v.   Dawson,   134  Mo.   581, 

2077.     See     article     in     Journal    of  590,  36   S.  W.   233. 

American   Engineering   Societies,   vol.  12  Lammers  v.  Nissen,  4  Neb.  245. 

44,   p.   215,   for  April,   1910,  contain-  "All  the  authorities  agree  that  in  or- 

ing  an  article  by  Mr.  Otto  Von  Gel-  der  that  a  shore  owner  take  land  by 

dern.     For  a  discussion  of  the  law  of  way  of  accretion  or  reliction,  it  must 

accretion,  see  McBride  v.  Steinweden,  appear  that  the   addition  was  to   his 

72  Kan.  508,  83  Pac.  822;   Fowler  v.  shore  either  by  the   deposit  of   earth 

Wood,  73  Kan.  511,  117  Am.  St.  Rep.  or  by  the  receding  of  the  water  from 

534,  85  Pac.  763;  6  L.  R.  A.,  N.  S.,  his  land,  and  that  such  addition  must 

162.  be    by    slow    and    imperceptible    pro- 

A.  \r  i    TT    «    -IR       ^    OAT    o«o  cesses."     Hammond    v.    Shepard,   186 

i  Vol.  II,  c.  16,  pp.  261,  262.  in    ^  ?g  Am    gt    Rgp    ^    >7  N 

5  De  Jure  Maris,  ce.  1,  6.  E.  867. 

6  13  "Lacus  et  stagna,  licet  interdum 
'  c'     '                                             crescant,    interdum    exarescant,    suos 

7  Bk.  Ill,  c.  2,  sec.  6,  etc.  tamen    terminos    retinant    ideoque    in 
R  T*V    TT         o  kis    jus   alluvionis    non   adgnoscitur." 

Bit.  II,  e.  I.  Jugt    Digest>  lib.   41,  tit.   1    (Sec.   12 

9  Just.  II,  1,  20.  Callistratus,  lib.  2  Institutionum). 


§  902  Ch.  39.     MISCELLANEOUS  EIPAKIAN  EIGHTS.     (3d  ed.)  939 

has  no  vested  right  to  have  conditions  maintained  such  that  accre- 
tions will  continue  to  be  formed  in  the  future.14 

Accretions  on  navigable  and  non-navigable  rivers  or  other  waters 
belong  to  the  owner  of  the  bank  to  which  they  attach ; 15  and  if  they 
are  formed  upon  the  banks  of  two  opposite  owners,  are  to  be  divided 
between  them.18  If  one  bank  is  public  land,  the  government  is  en- 
titled to  its  share  with  the  opposite  private  owner.17 

The  right  to  accretions  is  one  of  the  numerous  riparian  rights 
founded  upon  the  riparian  owner's  right  of  access  to  the  river, 
which  carries  with  it  the  right  to  any  formations  which  would  de- 
stroy the  right  of  access  if  not  regarded  as  his  property,18  and  for 
the  same  reason  the  riparian  owner  is  entitled  likewise  to  artificial 
formations  upon  his  bank  wrongfully  produced  by  strangers  to  him 
by  artificial  means.19 

In  Western  jurisdictions  rejecting  the  common  law  of  riparian 
rights  in  toto  in  favor  of  the  law  of  appropriation,  the  riparian  right 
of  accretion  remains  so  long  as  the  stream  has  not  been  diverted  by 
any  appropriator.20 

(3d  ed.) 

§  902.     Islands. — Islands  rising  in  a  river  unconnected  with  the 

bank  belong  to  the  owner  of  the  bed  at  that  place. 

In  jurisdictions  where  the  State  owns  the  bed  of  innavigable 
streams,  islands  formed  therein  belong  to  the  State,  though  .by  later 

14  Western    Pac.    Co.    v.    Southern  ary     changing     as     the     shore     line 
Pac.  Co.,  151  Fed.  376,  80  C.  C.  A.  changes    by    accretion    or  erosion,  in 
606.  the    absence    of   definite   intention    to 

15  Kinkead    v.    Tureeon,    74    Neb.  the     contrary."     Stockley    v.     Cissna, 
580,  104  N.  W.  1061,  109  N.  W.  744,  U9  Fed.  822,  56  C.  C.  A.  324. 

1  L.  K.  A.,  N.  S.,  162,  13  Ann.  Cas.  i8  And  if  accretion  continues  until 

43;     Hathaway    v.     Milwaukee,     132  the  opposite  banks  come  together,  the 

Wis.    249,    122    Am.    St.    Rep.    975,  line   of   contact   will   be   the   division 

111   N.   W.    570,    112   N.   W.   455,    9  line.     Buse   v.   Russell,   86   Mo.    209- 

L..  R.  A.,  N.  S.,  778;  Judson  v.  Tide-  214. 

water    Co.,    51    Wash.    164,    98    Pac.  17  Bigelow    v.     Hoover,     85    Iowa, 

377;    Ami   Co.   v.    Tidewater   Co.,   51  igi     39  Am.  St.  Rep.  296,  52  N.  W. 

Wash.   171,   98   Pac.  380.     "The  doc-  i£4. 

trine  is  well  settled  that  when  lands  18  Dietrich     v      Northwestern     By. 

border   on   navigable   rivers    and   the  c      42  wig   2g2   24  A      R       399     • 

banks   are   changed   by   that    gradual 

and   imperceptible   process    known   as  i»  Steers  v.  City  of  Brooklyn,  101 

'accretion'   the   boundaries   of   the   ri-  N.  Y.  51,  4  N.  E.  7. 

parian     proprietor    still    remain    the  20  Sternberger   v.    Seaton   etc.    Co. 

river,   although   as   a   consequence   of  (1909),  45  Colo.  401,   102  Pac.   168; 

such  change  in  the  shore  line  the  area  Hutchinson  v.  Watson  D.  Co.   (1909), 

of    the    possession    may    change.     A  16  Idaho,  484,  133  Am.  St.  Rep.  125, 

boundary  on  a  river  implies  a  bound-  101  Pac.  1059. 


940  (3d  ed.)    Pt.  IV.    THE  COMMON  LAW  OF  RIPARIAN  RIGHTS.    §  903 

accretions  joined  to  the  bank.  "Additions  to  the  land  of  a  littoral 
proprietor  by  the  action  of  the  water  become  a  part  of  the  land, 
and  belong  to  the  owner,  where  they  are  so  gradual  as  to  be  imper- 
ceptible; but  if  an  island  arises  out  of  the  water,  and  afterward 
becomes  connected  to  the  land  of  the  littoral  proprietor,  it  belongs 
to  the  State."21 

(3d  ed.) 

§  903.     Boundaries. — Owing   to   the   law   of    accretion,    water 

boundaries,  at  common  law,  shift  with  the  water,  and  are  not  fixed. 
The  California  Civil  Code  provides :  ^  ' '  Except  where  the  grant 
under  which  the  land  is  held  indicates  a  different  intent,  the  owner 
of  the  upland,  when  it  borders  on  tide  water,  takes  to  ordinary  high- 
water  mark ;  when  it  borders  upon  a  navigable  lake  or  stream,  where 
there  is  no  tide,  the  owner  takes  to  the  edge  of  the  lake  or  stream, 
at  low-water  mark ;  when  it  borders  upon  any  other  water,  the  owner 
takes  to  the  middle  of  the  lake  or  stream."  ^  This  boundary  shifts 
with  the  water,  at  common  law.  "Suppose  the  Crown,  being  the 
owner  of  tho  foreshore — that  is,  the  space  between  high  and  low 
water  mark — grants  the  adjoining  soil  to  an  individual ;  and  the 
water  gradually  recedes  from  the  foreshore,  no  intermediate  period 
of  the  change  being  perceptible ;  in  that  case,  the  right  of  the 
grantee  of  the  Crown  would  go  forward  with  the  change.  On  the 
other  hand,  if  the  sea  gradually  covered  the  land  so  granted,  the 
Crown  would  be  the  gainer  of  the  land.  The  principle  laid  down 
by  Lord  Hale,  that  the  party  who  suffers  the  loss  shall  be  entitled 
also  to  the  benefit ,  governs  and  decides  the  question. "  24  As  stated 
in  another  authority,  ' '  The  question  is  well  settled  at  common  law 
that  the  person  whose  land  is  bounded  by  a  stream  of  water,  which 
changes  its  course  gradually  by  alluvial  formations,  shall  still  hold 
by  the  same  boundary,  including  the  accumulated  soil.  No  other 
rule  can  be  applied  on  just  principles.  Every  proprietor  whose 

21  People    v.    Warner,     116    Mich.  641,    31    L.    R.    A.    317.     See    South 

228,   74  N.  W.   705.     Accord,   Cooley  Dakota  Stats.  1911,  e.  189,  p.  231. 

v.  Golden,  117  Mo.  33,  49,  23  S.  W.  22  Section    830    of    the    California 

100,    21    L.    R.    A.    300;    Holman    v.  Civil  Code. 

Hodges,  112   Iowa,   714,   84  Am.   St.  23  gee  Drake  v.  Russian  River  Co., 

•Rep.   367,   84   N.   W.    950,   58   L.    R.  10  Cal.  App.  654,  103  Pac.  167. 

A.   673;    Perkins  v.  Adams,   132   Mo.  24  Alderson,  B.,  in   The   Matter  of 

131,    139,    33    S.   W.    778;    Tatum   v.  the     Hull     and     Selby     Railway,     7 

City  of   St.   Louis,   125   Mo.   647,   28  Mees.     &     W.     327.     To     the     same 

S.   W.    1002;    Chinn    v.    Naylor,    182  effect,     Adams     v.     Frothingham,     3 

Mo.  583,  81  S.  W.  1109;   Wallace  v.  Mass.  352,  3  Am.  Dec.   151;   Phillips 

Driver,  61  Ark.  429,  435,  33   S.  W.  v.  Rhodes,  7  Met.   (Mass.)   322. 


§  903  Ch.  39.     MISCELLANEOUS  EIPAEIAN  EIGHTS.     (3d  ed.)  941 

land  is  thus  bounded  is  subject  to  loss,  by  the  same  means  which 
may  add  to  his  territory,  and  as  he  is  without  remedy  for  his  loss, 
in  this  way,  he  cannot  be,  held  accountable  for  his  gain."25  A 
strip  of  land  having  both  its  lateral  boundaries  upon  water  may 
hence  become  a  movable  freehold  when  both  boundaries  shift.1 

Where,  however,  a  grant  clearly  intends  a  fixed  boundary  and 
contains  words  expressly  negativing  the  common-law  rule,  then 
the  boundary  will  not  shift,  nor  will  the  grantee  be  entitled  to 
accretions.2  Where  an  owner  of  land  plats  the  land  both  upland 
and  shallow,  and  sells  both  separately,  he  in  effect  disassociates 
his  riparian  rights  from  the  upland  estate,  and  the  owner  of  the 
upland  cannot  prevent  a  purchaser  of  submerged  land  from  re- 
filling land  which  has  been  covered  by  the  advancing  landward  of 
the  shore  line.3  So,  where  by  statute  an  artificial  harbor  line  is 
established,  riparian  rights  whether  of  accretion  or  wharfage, 
do  not  extend  beyond  that  statutory  line.  This  was  early  settled 
as  to  San  Francisco  harbor.4  In  another  early  case  it  was  held: 
"We  do  not  consider  that  the  plaintiff  is  a  riparian  proprietor 
in  the  sense  in  which  the  term  is  used  in  the  law  of  tide  waters. 
He  is  not  an  owner  upon  the  'shore,'  but  upon  a  'waterfront'  of 
statute  creation.  The  waterfront  established  by  the  act  of  March 
5.  1851,  is  what  that  act  has  made  it  to  be,  and  the  rights  of  the 
plaintiff  as  the  owner  of  a  beach  and  water  lot  abutting  upon  it 
exist  only  in  subordination  to  that  act.  It  is  provided  in  the 
fourth  section  of  the  act  that  the  boundary  line  described  in  the 
first  section  shall  be  and  remain  a  permanent  waterfront  of  said 
city;  and  special  provision  is  made  for  keeping  it  free  and  clear 
of  all  obstructions  .....  'Shore'  is  the  space  between  high  and 
low  water  mark.  Against  the  plaintiff's  water  lot  there  is  no  such 
space.  The  waterfront  at  the  point  is  below  low  water  mark,  and 
there  can  be  no  riparian  right  to  build  a  wharf  or  pier  beyond 

25  New  Orleans  v.  United  States,  10  2  Cook  v.  McClure,  58  *N.  Y.  437 

Pet.    717,    9   L.    Ed.   595.     See,   also,  ,?   .       R        270 
Scratton  v.  Brown,  4  Barn.  &  C.  485, 

107  Eng.  Eeprint,  1140;  Camden  etc.  3  Gilbert    v.    Eldridge,    47    Minn. 

Co.  v.  Lippincott,  45  N.  J.  L.  415,  210,  49  N.  W.  679,  12  L.  E.  A.  411. 
417  (citing  cases)  ;  Wallace  v.  Driver, 

61  Ark.  432,  33  S.  W.  641,  31  L.  E.  4  Eldridge    v.    Cowell,    4    Cal.    80, 

A.    317     (citing    cases)  ;    De    Lancey  holding     that     one     who     took     with 

v.  Wellbrock,  113  Fed.  103.  knowledge     of     the     San     Francisco 

pl  takes 


citing  Scratton  v.  Brown,  4  Barn.  &       Wlthout   npanan    rights,    and    cannot 
C.  485,  107  Eng.  Eeprint,  1140.  object  to  filling  in  in  front  of  him. 


942  (3d  ed.)    Pt.  IV.    THE  COMMON  LAW  OF  EIPARIAN  RIGHTS.    §  904 

it ;  and  it  follows  that  'if  a  wharf  should  be  built  by  a  stranger 
below  the  line  of  low  water,  that  the  owner  of  the  adjacent  up- 
land would  have  no  right  of  entry  upon  it  on  which  he  could  main- 
tain ejectment."5  And  in  the  supreme  court  of  the  United 
States:  "But  in  this  case  no  inquiry  as  to  the  rights  of  a  riparian 
proprietor  by  either  the  common  law  or  local  usage  or  regulation, 
is  needed.  The  complainant  is  not  the  proprietor  of  any  land 
bordering  on  the  shore  of  the  sea,  in  any  proper  sense  of  that  term. 
His  land  is  situated  nearly  half  a  mile  from  what  was  the  shore 
of  the  bay  of  San  Francisco,  at  the  time  California  was  admitted 
into  the  Union,  and  over  it  the  water  at  the  lowest  tide  then 
flowed  at  a  depth  sufficient  to  float  vessels  of  ordinary  size.  There 
is,  therefore,  no  just  foundation  for  the  claim  by  the  complain- 
ant as  riparian  proprietor  of  a  right  to  wharf  out  into  the  bay  in 
front  of  his  land."8 


C.     WHARFAGE  AND  OTHER  RIPARIAN  OR  LITTORAL  RIGHTS. 

(3d  ed.) 

§  904.     Access. — As  elsewhere  set  forth,  all  riparian  rights  are 

founded  upon  the  natural  situation  of  riparian  lands,  giving  access 
to  the  natural  resource.7  The  right  to  preserve  and  enjoy  this 
natural  situation — the  right  of  access — is  the  essence  of  all,  and 
is  in  itself  a  right  of  property.  The  right  of  access  is  his  only, 
and  exists  by  virtue  and  in  respect  of  his  riparian  property.  It  is 
distinct  from  title  to  the  bed  of  the  water.  It  exists  in  the  case 
of  tide  waters,  even  where  the  shore  is  the  sovereign's  property, 
both  when  the  tide  is  out  and  when  it  is  in.  It  is  distinct  from 
the  public  right  of  navigation,  and  an  interruption  of  it  is  an  en- 
croachment upon  a  private  right,  whether  caused  by  a  public 
nuisance  or  authorized  by  the  legislature.  In  Lyon  v.  Fish- 

5  Dana  v.  Jackson   St.  Wharf  Co.,  of  the   rights   of   either,   and   neither 
31  Cal.  121,  89  Am.  Dec.  164.  the    first    nor    the    last    grantee    will 

6  Weber    v.    Harbor    Commrs.,    18  acquire   any   exclusive   riparian   privi- 
Wall.   (U.  S.)    65-67,  21  L.  Ed.  802.  leges.     None  of  such  grantees  are  in 
So    of    the    statutory    waterfront    of  any  proper  sense  riparian  owners  at 
New    York    harbor   'it    is    held:   "In  all,  and  riparian  rights  do  not  attach 
the   absence   of  an   express   grant   of  to   such   grants."     Turner  v.   People's 
wharfage,  or  of  such  manifest  inten:  Ferry     Co.,     21     Fed.     93,     94.     See 
tion,    the    city    or    the    State,    as    the  Hoboken   v.   Pacific   Ry.   Co.,    124   U. 
case    may    be,    may    make    successive  S.    690,   8   Sup.   Ct.   Rep.   643,   31   L. 
grants     of    its     lands    under     water,  Ed.  543. 

each  in  front  of  the  former,  to  dif-  7  Supra,  sec.  692  et  seq. 

ferent  grantees,  without  any  violation 


§  904  Ch.  39.     MISCELLANEOUS  RIPARIAN  RIGHTS.     (3d  ed.)  943 

mongers'  Co.8  it  was  said  that  the  rights  of  a  riparian  proprietor, 
so  far  as  they  relate  to  natural  streams,  exist  jure  naturae,  because 
his  land  has  by  nature  the  advantage  of  being  washed  by  the 
stream,  and  as  the  facts  of  nature  constitute  the  foundation  of  the 
right,  the  law  should  recognize  and  follow  the  course  of  nature  in 
every  part  of  the  stream. 

The  owner  of  land  bounded  by  a  navigable  river  has  the  right 
to  free  communication  between  his  premises  and  the  navigable 
channel  of  the  river.9  Acts  of  a  boom  company  obstructing  navi- 
gation of  a  river  may  be  enjoined  in  an  action  by  persons  whose 
use  of  the  river,  ordinarily  affording  them  ingress  to  and  egress 
from  their  lands,  is  thereby  interfered  with.10  A  railroad  being 
built  between  a  wharf  and  the  water,  compensation  must  be  made  to 
the  wharf  owner.11  An  embankment  for  a  road  along  the  shore 
is  such  an  injury  to  the  riparian  owner  as  to  entitle  him  to  dam- 
ages.12 Special  damages  are  sustained  by  one  whose  means  of 
access  to  his  cottage  on  the  banks  of  a  navigable  river  is  cut  off 
by  an  obstruction  of  the  stream  with  logs  (there  being  no  other 
highway  leading  thereto),  so  as  to  entitle  him  to  recover  damages 
for  the  obstruction.13 

In  most  States,  this  right  of  access  cannot  be  taken  from  the 
riparian  owner  without  compensation,  even  for  the  improvement 
of  navigation.  If  the  acts  done  or  structures  built  in  the  im- 
provement of  navigation  destroy  the  right  of  access  or  other  ripa- 

s  T     T?    i    A™    Tna    fi73     in   Oh  12  Buccleuch    v.  Metropolitan    Bd. 

°  Li.    K.    1    App.    <^as.    D/o,    1U    UQ.  -    -rov.-!,-      T       •»  Q     v^      OAG       0™ 

c"n    A  A  T     T   r>i;    -\x    a    7/17    59  T     T  °*    Works,    Li.    K.  6    r-x.    oOb.     See, 

6/9.  44  Li.  J.  On.  M.  H.  747,  oo  LJ.    1.,  ,,             ...  _,        ,    -Tr     , 

N.'S,    146,    24    Week.     Rep.    1,    se^  f>   Metropo htan  . Bd    of  Works   v 

^pra/sec.  698.  L    J     C^P^  N     S,  ?85     31   L.'  T , 

»  Case   v.   Toftus,   37   Fed.    730,    5  N.  S.,   132;   Original  Hartelpool  Coi- 

L.  R.   A.   684;   Paine  Lumber  Co.  v.  iieries   Co.   v.   Gibb,   L.   R.   5   Ch.   D. 

United  States,  55  Fed.  854;  Hedges  713.  Bell  v.  Quebec,  L.  R.  5  App. 
v.  West  Shore  R.  Co.,  80  Hun,  310,  •  Oas.  98,  49  L.  J.  P.  C.,  N.  S.,  1, 

30    N.    Y.    Supp.    92;    Yates   v.   Mil-  41  L.  J.  451,  Atty.  Gen.  v.  Wemyss, 

waukee,  10  Wall.  497,  19  L.  Ed.  984;  L.    B.    ^    App.    Cas.    192;    Rose    v. 

Shepard    v.    Coeur    d'Alene    Co.,    16  Groves,    5    Man.    &   G,    613,    6    Scott 

Idaho,  293,  101  Pac.  591.  N.   R.   645,   1   Dowl.   &  L.   61,   12  L. 

10  Hulet     v.     Wishkah     Boom     Co.  J-    C.    P.,    N.    S.,    251,    7    Jur.    951; 
(1909),   54  Wash.   510,   132   Am.   St.  Kearns   v.    Cordwainers    Co.,   6   Com. 
Rep.  1127,  103  Pac.  814.  B.,  N.  S.,  388,  28  L.  J.  C.  P.,  N.  S., 

.     a     _,     _        ,,       285,   5   Jur.,   N.    S.,   216.     Regarding 

11  B,eV«o?U?W*    P-      970  %  wharfage  and  riparian  rights  on  navf 
Mees.  &  W.  699    2  Ry   Cas.  279.     See  w     £T  £e   127  |m.  St.  R 

Attorney  General   v.   Conservators   of  |Q    note 

the  Thames,  1  Hem.  &  M.  1,  8  Jur,  '13  Sin'  Aroostook  Lumber  Co., 

N.  S,  1203,  11  Week.  Rep.  163;  71  1Q3  Me    3?    6g  Atl   52?    u  L>  R  A 

Eng.  Reprint   1.  N>  g ^  1083> 


944  (3d  ed.)    Pt.  IV.    THE  COMMON  LAW  OF  RIPARIAN  RIGHTS.    §  904 


rian  rights  of  a  riparian  owner,  the  riparian  owner  is  entitled  to 
damages  as  for  taking  of  private  property  for  a  public  purpose, 
for  the  rule  in  the  majority  of  the  States  recognizes  his  right  of 
access  to  navigability  as  private  property  which  cannot  be  taken 
from  him  by  the  State  without  compensation.  In  one  California 
case  it  is  said:  "The  State  cannot  make,  nor  authorize  to  be  made, 
any  obstruction  in  navigable  waters  in  front  of  any  riparian  pro- 
prietor, which  will  prevent  his  having  free  access  by  water  to 
his  land,  unless  it  be  done  in  the  exercise  of  its  power  to  take 
private  property  for  public  use,  and  compensation  made  there- 
for."14 

The  rule  in  New  York  seems  opposed  to  this.15  The  supreme 
court  of  the  United  States  also  doubted  whether  the  riparian 
owner  should  have  compensation,  upon  principle,  but  holds  that 
whether  he  shall  or  shall  not  is  entirely  a  question  of  State  law,16 
and  that  it  will  uphold  the  State  upon  whichever  stand  it  takes.17 


14  Eldridge   v.   Cowell,    4   Cal.    80. 
A  leading  case  is  Yates  v.  Milwau- 
kee,   10   Wall.    497,    19   L.    Ed.    984, 
cited  and  approved  in  San  Francisco 
Sav.    Union   v.    R.    G.    R.    Petroleum 
Co.,  144  Cal.   134,   103  Am.  St.  Rep. 
72,    77    Pac.    832,    66   L.    R.    A.    242, 
1    Ann.    Gas.     182.     The    California 
Political     Code,     section     404",     pro- 
vides  expressly   for  protection   of   ri- 
parian owners  where  counties  improve 
river-beds,    etc.     See,    also,    Shepard 
v.     Coeur     d'Alene     Co.     (1909),    16 
Idaho,   293,   101  Pac.   591;   Kamm  v. 
Normand,  50  Or.  9,  126  Am.  St.  Rep. 
698,   91    Pac.    451,    11   L.   R.   A.,   N. 
S.,     290;      Bigham     Bros.     v.     Port 
Arthur    etc.    Co.,    100    Tex.    192,    97 
8.  W.  686,  13  L.  R.  A.,  N.  S.,  656; 
Mashburn  v.  St.  Joe  Imp.  Co,   (Or.), 
113  Pac.  92;  Wash.  Stats.  1911,  c.  11, 
sec.    7,    Bubd.    d.     See,    also,   note   to 
State    ex    rel.   Denny   v.    Bridges,    19 
Wash.  44,  52  Pac.  326,  40  L.  R.  A.  593. 

15  Scranton  v.  Wheeler,  179  U.  S. 
141,  21  Sup.  Ct.  48.  45  L.  Ed.   126; 
Gould  v.  Hudson  R.  Co.,  6  N..Y.  552; 
Lansing   v.    Smith,    4   Wend.    21,    21 
Am.  Dec.  89;   People  v.  Tibbetts,  19 
N.  Y.  523;   People  ex  rel.  Loomis  v. 
Canal  Appraisers,  33  N.  Y.  461;  Smith 
v.   Rochester,  92   N.  Y.   463,   44  Am. 
Rep.  393;  Langdon  v.  New  York,  93 
N.  Y.   129;    Sage  v.   New  York,   154 


N.  Y.  61,  61  Am.  St.  Rep.  592,  47 
N.  E.  1096,  38  L.  R.  A.  606.  And 
see  Cohen  v.  United  States,  162  Fed. 
364;  Crawford  etc.  Co.  v.  Hathaway, 
67  Neb.  325,  108  Am.  St.  Rep.  647, 
93  N.  W.  781,  60  L.  R.  A.  889.  In 
an  early  English  case  it  was  held 
that  no  compensation  need  be  given 
for  pollution  of  water  (rendering  in 
salt)  in  improvement  of  navigation, 
saying  (as  previous  sections  have 
shown  no  longer  to  be  the  law)  that 
there  could  be  no  private  riparian 
right  in  navigable  streams.  Lord 
Ellenborough  in  The  King  v.  Directors 
of  Bristol  Dock  Co.,  12  East,  429,  104 
Eng.  Reprint,  167.  Contra,  see  Big- 
ham  Bros.  v.  Port  Arthur  etc.  Co.,  100 
Tex.  192,  97  S.  W.  686,  13  L.  R.  A., 
N.  S.,  656. 

18  Barney  v.  Keokuk,  94  U.  S.  324, 
24  L.  Ed.  224,  quoted  with  approval 
in  Hardin  v.  Jordan,  140  U.  S.  382, 
11  Sup.  Ct.  Rep.  808,  838,  35  L. 
Ed.  433;  Shively  v.  Bowlby,  152  U. 
S.  49,  14  Sup.  Ct.  Rep.  548,  38  L. 
Ed.  349;  Packer  v.  Bird,  137  U.  S. 
671,  11  Sup.  Ct.  Rep.  210,  34  L.  Ed. 
821. 

17  United  States  v.  Mission  Rock 
Co.,  189  U.  S.  391,  23  Sup.  Ct.  Rep. 
606,  47  L.  Ed.  865.  Supra,  sec.  898, 
note  11. 


§  905  Ch.  39.     MISCELLANEOUS  KIPAEIAN  EIGHTS.     (3d  ed.)  945 

(3d  ed.) 

§  905.  Wharfage,  etc. — The  riparian  owner's  right  of  access 
gives  him  the  right  to  exercise  the  same  by  wharfing  out  into 
navigable  waters.18  In  the  leading  case  of  Yates  v.  Milwaukee  19 
it  is  said:  "But  whether  the  title  of  the  owner  of  such  a  lot  ex- 
tends beyond  the  dry  land  or  not,  he  is  certainly  entitled  to  the 
rights  of  a  riparian  proprietor,  whose  land  is  bounded  by  a  navi- 
gable stream ;  and  among  those  rights  are  access  to  the  navigable 
part  of  the  river  from  the  front  of  his  lot,  the  right  to  make  a 
landing,  wharf  or  pier,  for  his  own  use  or  for  the  use  of  the  pub- 
lic, subject  to  such  general  rules  as  the  legislature  may  see  proper 
to  impose  for  the  protection  of  the  rights  of  the  public,  whatever 
those  may  be."  Erections  may  be  placed  in  the  sea  or  its  shores 
and  belong  to  the  maker,  quod  nullius  sit,  occupantis  fit;  provided 
it  does  not  interfere  with  navigation  or  the  prior  structures  of 
individuals.20  If  the  owner  of  land  bounded  by  the  shore  upon 
tidewater  makes  improvements  upon  or  reclaims  the  shore  adjoin- 
ing his  lands,  the  part  of  the  shore  so  improved  or  reclaimed  be- 
longs to  him,  and  cannot  be  granted  by  the  State.21 

If,  however,  they  interfere  with  navigation  or  other  public 
rights,  they  become  purprestures  and  may  be  prohibited.  For  ex- 
ample, the  courts  of  some  States  and  of  the  United  States  have 
held  that  a  riparian  owner  has  not  the  right  to  maintain  a  dam 
or  other  obstruction  which  prevents  the  passage  of  fish  up  the 
streams,  and  that  the  legislature  may  establish  regulations  to  pre- 
vent obstructions  to  the  passage  of  fish.22  Likewise,  if  they  cause 
damage  to  other  riparian  owners,  they  are  actionable  by  them.23 

It  has  been  held  that  the  right  to  wharf  out  may  be  severed 
from  the  land  by  grant.24 

The  riparian  owner  on  an  artificial  statutory  waterfront  has  no 
right  to  wharf  out,  however.25 

is  Coquille  etc.  Co.  v.  Johnson,  52  22  in   re    Delaware    River    (1909), 

Or.    547,    132   Am.    St.    Eep.   716,   98  131  App.  Div.  403,  115  N.  Y.  Supp. 

Pac.   132;   Montgomery  v.  Shaver,  40  750. 

Or    244,  66  Pac.  923;   Stevens  Point  23  Kuhnis    v.    Lewis    etc.    Co.,    51 

Boom    Co.    v.    Reilly,    44    Wis.    295;  Wash.  196,  98  Pac.  656. 

Eiver  Co.  v.  Patterson,  98  U.  S.  403,  24  Montgomery   v.    Shaver,   40    Or. 

25  L.  Ed.  206.  250,   66   Pac.   923;    Coquille   etc.    Co. 

19  10  Wall.  497,  19  L.  Ed.  984.  v.  Johnson,  52  Or.  547,  132  Am.  St. 

20  Pothier,  Droit  de  Propriete,  opp.  Rep.    716,    98    Pac.    132;    Decker    v. 
torn.  8,  p.  150.  Pac.  etc.  Co.  (Alaska),  164  Fed.  977. 

21  Heiney  v.  Noland,  75  N.  J.  L.  See  40  L.  R.  A.  393,  note. 
397,  67  Atl.  1008.  25  Supra,  sec.  903. 

Water  Bights — 60 


946  (3ded.)     Pt.  IV.     THE  COMMON  LAW  OF  KIP ARIAN  EIGHTS.     §906 
(3d  ed.) 

§  906.  Other  Riparian  Rights  in  Navigable  Waters. — In  gen- 
eral, riparian  owners  have  all  the  rights  upon  navigable  rivers 
that  they  have  on  non-navigable  rivers,  provided  they  occasion 
no  obstruction  to  the  navigation,1  since  the  right  arises  from 
ownership  of  the  bank,  not  the  bed.  In  Lyon  v.  Fishmongers r 
Co.2  Lord  Cairns  said:  "I  cannot  entertain  any  doubt  that  the 
riparian  o'wner  on  a  navigable  river,  in  addition  to  the  right  con- 
nected with  navigation  to  which  he  is  entitled  as  one  of  the  pub- 
lic, retains  his  rights,  as  an  ordinary  riparian  owner,  underlying 
and  controlled  by,  but  not  extinguished  by,  the  public  right  of 
navigation."  In  another  English  case  Lord  Blackburn  said:  "It 
was  said  in  argument  in  the  present  case  that  whether  the  stream 
was  navigable  or  not  made  no  difference  as  to  the  rights  of  the 
riparian  proprietors I  agree  to  this,"  etc.3 

Thus,  he  has  a  right  to  a  reasonable  use  of  the  water  for  irriga- 
tion,4 or  for  power  purposes,5  and,  in  general,  for  other  beneficial 
uses.  "The  rule  is  elementary  that  ....  every  proprietor  of 
land  on  the  bank  of  a  stream  of  water,  whether  navigable  or  not, 
has  the  right  to  use  the  water,  etc."6  The  riparian  proprietor 
on  a  navigable  stream  has,  among  other  rights,  "the  right  to 
make  a  reasonable  use  of  the  water  as  it  flows  past  or  laves  the 
land."7 

(3d  ed.) 

§  907.  Fishing. — The  general  common  law  of  fishing  is  bor- 
rowed from  the  civil  law.8  In  the  civil  law,  the  fish  themselves 

1  Supra,  sec.  726.  Aubrey  &  Eau,  4th  ed.,  vol.  Ill,  p. 

2  L.  E.  1  App.  Gas.  673.  16. 

3  Orr  Ewing  v.   Colquohoun,  L.  E.  6  Hamelin    v.    Bannerman    [1895], 
2   App.   Cas.    861.     See,   also,   Kent's  App.   Cas.    237;    Trullinger   v.   Howe, 
Commentaries,  lee.   52,  3  Kent,  429;  53    Or.    219,    97    Pac.    549,    99    Pac. 
20  Harvard  Law  Eeview,  489,  note;  880,  22  L.  K.  A.,  N.  S.,  545;  Dodge 
Madison    v.     Spokane     etc.     Co.,     40  v.      Inhabitants     of     Eockport,     199 
Wash.  414,  82  Pac.  719,  6  L.  E.  A.,  Mass.  274,  85  N.  E.  172. 

N.    S.,    257 ;    Myers    v.    City    of  .  St.  «  Lyon,    J.,    in    Kimberly    etc.    Co. 

Louis,  82  Mo.  367;   Walker  v.  Board  v.    Hewitt,    79   Wis.    334,    48    N.    W. 

of  Pub.  Works,  16  Ohio,  540;  Judson  373,    quoted    in    Green    Bay    Co.    v. 

v.  Tide  Water  Co.,  51  Wash.  164,  98  Kaukauna  Co.,  90  Wis.  370,  48  Am. 

Pac.  377;   Carli  v.  Stillwater  Co.,  28  St.  Rep.  937,  61  N.  W.  1121,  63  N.  W. 

Minn.  276,  3  N.  W.  348.  1019,  28  L.  E.  A.  443. 

4  Heilbron   v.   Fowler   etc.    Co.,    75  7  Lewis    on    Eminent    Domain,    2d 
Cal.  426,  7  Am.  St.  Eep.  183,  17  Pac.  ed.,  sec.  83;  Taylor  v.  Commonwealth, 
535;    Bigham    Bros.    v.    Port    Arthur  102  Va.   759,  102  Am.   St.  Eep.  865, 
etc.  Co.,  100  Tex.  192,  91  S.  W.  848,  47  S.  E.  881. 

97    S.   W.   686,   13   L.   E.   A.,   N.    S.,  8  Shultz  on  Aquatic  Eights,  p.  1.      . 

656.     Droit      Civile      Francais,      par 


§  907  Ch.  39.     MISCELLANEOUS  RIPARIAN  RIGHTS.     (3d  ed.)  947 

while  swimming  at  large  are  "ferae  naturae,"  in  the  "negative 
community,"  and  belong  to  no  one;  the  right  of  fishing  is  purely 
a  usufructuary  right ;  the  fish  themselves  become  private  property 
only  when  caught.9  "The  fish  in  the  sea,  rivers,  lakes,  etc.,  being 
in  their  natural  freedom,  are  things,  belonging  to  no  one;  fish- 
ing is  a  species  of  occupation  whereby  the  fisherman  acquires  the 
property  in  the  fish  he  catches,  and  thus  takes  into  his  posses- 
sion."10 To  illustrate  this  nature  of  property  in  fish,  fishing  in 
non-navigable  rivers  is  not  really  larceny,  though  it  may  be  treated 
as  such;  but  regarding  fish  in  a  reservoir,  these  are  in  the  posses- 
sion of  him  who  is  guarding  them,  who  may  permit  their  capture 
as  he  sees  fit ;  and  there  can  be  no  doubt  whatever  that  one  who 
fishes  there  without  his  consent  commits  an  actual  larceny  against 
the  man  to  whom  the  reservoir  belongs.11 

From  this  negative  civil-law  position  of  "belonging  to  no  one," 
the  change  is  now  well  established  in  the  common  law  to  the  posi- 
tive one  that  fish  swimming  at  large  "belong  to  the  State  in  trust 
for  the  public."12 

In  navigable  waters,  the  public  has  a  right  of  fishing,  so  far  as 
it  has  access  to  the  water;  and  the  riparian  owners  cannot  prevent 
them.13  But  a  lawful  mode  of  access  must  be  obtained  by  the 
public  before  it  can  exercise  the  privileges  appertaining  to  navi- 
gable waters.14  On  non-navigable  waters  fishing  is  a  private  ripa- 
rian right  belonging  exclusively  to  the  riparian  owners.  Lord 

»  Supra,    sees.    2,   33;    infra,  sec.  nent."     Pothier,   Traitfc   du  Droit  de 

1025.  Propriety    (op.  torn.   8,  p.   138).     An 

10  "Les  poissons,  qui  sont  dans  la  old  English  statute  to  protect  private 
mer,   dans   les   rivieres,   les  lacs,   etc.,  fish-ponds    is     referred     to     by   Lord 
etant    in    laxitate    natural!,    sont    des  Coke.     "If  a  man  committeth  a  tres- 
chose     qui     n'appartiennent     a     per-  pass    in    the    fish-pond,    etc.,    of    an- 
sonne:  la    peche,    qu'on    en    fait,    est  other,   by   taking  and   carrying   away 
un  genre   d'occupation   par  lequel  les  of   water,  he   is   no   misfeasor  within 
pecheurs    acquierent    le    domaine    des  this    statute;    but    if   he   let  "out    the 
poissons    qu'ils    pechent,    et    dont    ila  water  to  the  end  to  take  fish,  he  is  a 
s'emparent    par     la     peche     qu'ils    en  misfeasor    within    this    statute,"    etc., 
font."     Pothier,   Troite    de   Propriety  2   Coke's   Inst.,   commenting   on   Stat. 
(op.  torn.  8,  p.  137.)  3,    Edw.    I.     (Weston    I.),    cap.    20, 

11  "A    1'egard     des     poissons,     qui  6th  ed.  London,  1681,  p.  200. 
sont   dans   un   reservoir,   ces   poissons  L2  Supra,  sec.   6. 

etant   sub    manu   et   en   la   possession  *3  Willow  R.  Club  v.  Wade  (1898), 

de  celui  qui  les  y  garde,  qui  peut  les  100  Wis.  86,  76  N.  W.  273,  42  L.  R. 

aller   prendre   toutes   fois   et   quantes  A.    305.     See    13   Am.    St.    Rep.    416, 

que  bon  lui  semble,  il  n'est  pas  doti-  note. 

teux    que    celui,    qui    les    y    pecherait  14  Bolsa  etc.  Club  v.  Burdeck,  151 

sans   droit,   ferait  un   veritable  vol  a  Cal.   254,   90  Pac.   532,   12   L.  R.   A., 

celui    a    qui    ces    poissons    appartien-  N.   S.,   275. 


948   (3ded.)     Pt.  IV.     THE  COMMON  LAW  OF  RIPARIAN  RIGHTS.     §907 


Hale  says:15  "Fresh  rivers,  of  what  kind  soever,  do  of  common 
right  belong  to  the  owners  of  the  soil  adjacent;  so  that  the  owners 
of  the  one  side  have,  of  common  right,  the  property  of  the  soil 
and  consequently  the  right  of  fishing  usque  filum  aquae;  and  the 
owners  of  the  other  side  the  right  of  soil  or  ownership  and  fishing 
unto  the  filum  aquae  on  the  other  side. ' ' 16 

In  the  Western  States  which  have  rejected  the  common  law  of 
riparian  rights  in  toto  in  favor  of  the  law  of  appropriation,  the 
riparian  right  of  fishing  is  subordinate  to  the  rights  of  others  to 
appropriate  the  stream,  and  lasts  only  until  some  appropriator 
makes  a  diversion.17 

The  State  may  regulate  the  use  of  non-navigable  waters  (and, 
in  the  absence  of  conflict  with  navigation,  also  of  navigable 
waters)  for  the  preservation  of  fish.18 


IB  De  Jure  Maris,  cap.  I. 

16  A   civil-law   authority   says   that 
by  the  Roman. law  rivers  were  public, 
belonging  to   the  people,  though  the 
use  of  them  was  allowed  to  everyone 
(tout     le    monde)      and     everybody 
(chacun)      was      permitted      to     fish 
there.    It  is  different  in  our  (French) 
law.     The    king    owns    all    navigable 
rivers,   and    permits     fishing     therein 
only  to   "les  fermiers  du  domaine  et 
les     engagistes,"     and     others     than 
"fermiers"  cannot  do  it.     "A  1'egard 
des     rivieres     non     navigables,    elles 
appartiennent   aux    differens   particu- 
liers,  qui  sont  fondes  en  titres  ou  en 
possession,    pour    s'en     dire    proprie- 
taire  dans  1'entendue  porter  par  leurs 
titres  ou  leur   possession,"   and  they 
alone   can   fish   there.     Pothier,   Droit 
du  Propriety  op.  torn.  8,  p.  137. 

17  Sternberger    v.    Seaton    etc.    Co. 
(1909),   45   Colo.   401,   102   Pac.   168. 
But  see  State  v.  Banker  (Utah),  108 
Pac.  352. 

is  E.  g.,  Cal.  Pen.  Code,  sec.  629; 
People  v.  Truckee  etc.  Co.,  116  Cal. 
397,  48  Pac.  374,  39  L.  R.  A.  581; 
Ex  parte  Maier,  103  Cal.  476,  42  Am. 
St.  Rep.  129,  37  Pac.  402;  Ex  parte 
Bailey  (1909),  155  Cal.  472,  132 
Am.  St.  Rep.  95,  101  Pac.  441;  Port- 
land etc.  Co.  v.  Benson  (Or.),  108 
Pae.  122;  In  re  Delaware  River,  131 
App.  Div.  403,  115  N.  Y.  Supp.  750; 
Hooker  v.  Cummings,  20  Johns.  91, 
11  Am.  Dec.  249;  People  v.  Doxtater, 


75  Hun,  472,  27  N.  Y.  Supp.  481; 
affirmed,  147  N.  Y.  723,  42  N.  E. 
724;  Ex  parte  Maier,  103  Cal.  476, 
42  Am.  St.  Rep.  129,  37  Pac.  402; 
State  v.  Beardsley,  108  Iowa,  396, 
79  N.  W.  138;  Stoughton  v.  Baker,  4 
Mass.  522,  3  Am.  Dec.  236;  Geer  v. 
Connecticut,  161  U.  S.  519,  16  Sup. 
Ct.  Rep.  600,  40  L.  Ed.  793;  Holy- 
oke  Co.  v.  Lyman,  15  Wall.  500,  21 
L.  Ed.  133;  Parker  v.  People,  111  111. 
581,  53  Am.  Rep.  643.  In  Common- 
wealth v.  Essex  Co.,  13  Gray  (Mass.), 
249,  Chief  Justice  Shaw  says:  "It 
seems  to  be  well  settled  that  the  ob- 
struction of  the  passage  of  the  annual 
migratory  fish  through  the  rivers  and 
streams  of  the  commonwealth  is  not 
an  indictable  offense  at  common  law. 
But  the  right  to  have  these  fish  pass 
up  rivers  and  streams  to  the  head- 
waters thereof  is  a  public  right,  and 
subject  to  regulation  by  the  legisla- 
ture." In  Commonwealth  v.  Chapin, 
5  Pick.  (Mass.)  199,  16  Am.  Dec. 
386,  the  court  held  that:  "In  a  river 
not  navigable  the  proprietor  of  the 
adjoining  soil  has  an  exclusive  right 
of  fishery  in  front  of  his  land  to  the 
thread  of  the  river,  except  'so  far  as 
this  right  has  been  qualified  by  legis- 
lative regulations.  But  this  right  is 
limited  to  the  taking  of  fish,  and 
does  not  carry  with  it  a  right  to  pre- 
vent the  passage  of  fish  to  the  lakes 
and  ponds  for  the  multiplication  of 
the  species." 


§§  908-1006     (Blank  numbers.) 


§§1007-1009  Ch.40.     COMPAEISON.  (3d  ed.)  949 


CHAPTER  40. 

COMPARISON  OF  THE  LAW  OF  APPROPRIATION  AND  OF 
RIPARIAN  RIGHTS. 

§  1007.  Purpose  of  this  chapter. 

§  1008.  First   principles. 

§  1009.  As  dependent  on  ownership  of  land. 

§  1010.  Contiguity  to  the  stream. 

§  1011.  Mode  of  acquisition. 

§  1012.  Beneficial  use. 

i  1013.  Preference  of  domestic  use. 

§  1014.  Equality  vs.  priority. 

§  1015.  In  California. 

§§  1016-1024.     (Blank  numbers.) 

(3d  ed.) 

§  1007.  Purpose  of  This  Chapter. — It  is  our  purpose  in  this 
short  chapter  to  bring  together  in  concise  form,  without  citation 
of  authorities,  matters  set  forth,  with  regard  to  the  systems  of 
appropriation  and  riparian  rights,  in  the  foregoing  two  parts  of 
this  book,  showing  likenesses  in  the  two  systems,  differences,  and 
points  where  the  differences  are  being  bridged  and  the  systems 
converging. 

(3d  ed.) 

§  1008.  First  Principles. — Under  both  systems  the  corpus  of 
running  water  in  a  natural  stream  is  not  the  subject  of  ownership ; 
neither  real  property  nor  personal  property,  but  in  a  class  with 
the  air  in  the  atmosphere.  It  is  in  the  "negative  community"  (or 
"publici  juris,"  or  "belongs  to  the  public").  A  right  (called 
"usufructuary")  may  exist  to  use  it.  The  corpus  of  any  portion 
taken  out  of  the  stream  and  reduced  to  possession  is  private  prop- 
erty so  long  as  reduced  to  possession.  The  common  law  borrowed 
these  principles  from  the  civil  law  and  the  law  of  appropriation 
borrowed  them  from  the  common  law. 

(3d  ed.) 

§  1009.  As  Dependent  on  Ownership  of  Land. — To  protect  the 
landowners  bordering  upon  the  stream  from  trespass  upon  the 
land,  the  common  law  excludes  nonriparian  owners  from  the  use 


950  (3ded.)    Pt.  IV.    THE  COMMON  LAW  OF  RIP AEIAN  KI&HTS.    §  1010 

of  the  water,  and  to  prevent  excessive  damage  between  riparian 
owners,  limits  each  to  a  reasonable  use  of  his  own  land.  The 
common  law  limits  the  use  to  riparian  proprietors  upon  the  ripa- 
rian lands  and  contemplates  a  settled  community  occupying  such 
lands,  being  a  system  drawn  from  old-settled  countries.  But 
formerly  in  the  West  the  bordering  lands  were  open  public  do- 
main, and  the  United  States,  their  sole  owner,  did  not  object  to, 
but  encouraged,  the  trespass  and  free  diversion.  The  ownership 
of  riparian  or  any  land  in  a  private  individual  was  not  regarded 
as  necessary  to  his  use  of  the  water,  and  the  attributes  of  the 
system  of  appropriation  are  those  of  a  "free  public  land"  system. 
The  law  of  appropriation  is  hence  independent  of  ownership  of 
any  land  or  the  place  of  use. 

Upon  this  the  law  of  appropriation  is  to  some  extent  returning 
to  the  common  law  where  statutes  make  the  right  to  use  water 
by  appropriation  inhere  in  the  land  irrigated. 

The  free  access,  having  thus  given  rise  to  the  law  of  appro- 
priation, passes  away  as  the  bordering  lands  are  settled.  The 
right  of  the  private  land  to  the  use  of  the  water  because  of  its 
contiguity  is  (so  far  as  not  diverted  away  while  the  land  was 
public)  recognized  under  the  California  doctrine  but  not  under 
the  Colorado  doctrine.  The  latter  has,  however,  returned  to  the 
principle  of  the  common  law  so  far  as  the  private  riparian  land 
must  not  be  trespassed  upon  to  reach  the  water ;  the  appropriator 
must  enter  the  stream  on  public  land  or  proceed  by  grant,  pre- 
scription or  condemnation. 

(3d  ed.) 

§  1010.     Contiguity  to  the  Stream. — Contiguity  to  the  stream 

founds  the  riparian  right  but  is  disregarded  by  appropriation.  A 
tendency  to  return  to  the  common  law  is  seen  in  decisions  recog- 
nizing a  right  of  appropriation  in  the  riparian  owner  on  proof  of 
natural  subirrigatien ;  also  in  at  least  one  arid  State  prohibiting 
appropriations  for  use  beyond  the  watershed. 

(3d  ed.) 

§  1011.  Mode  of  Acquisition. — No  formalities  are  needed  to  re- 
quire riparian  rights  at  common  law ;  they  attach  ipso  facto  to  the 
riparian  land  because  of  its  contiguity  to  the  stream.  Certain 
formalities  are  required,  on  the  other  hand,  to  acquire  rights  by 
appropriation,  and  these  formalities  are  being  steadily  increased. 


§§1012-1014  Ch.  40.     COMPARISON.  (3d  ed.)  951 

(3d  ed.) 

§  1012.  Beneficial  Use. — Actual  use  is  the  foundation  of  a  right 
by  appropriation;  but  future  possible  use  stands  as  high  at  com- 
mon law  as  present  use.  Nonuse  causes  a  loss  of  the  appropria- 
tion, but  does  not  affect  the  riparian  right. 

The  law  of  appropriation  is  returning  to  the  common  law  in  this 
regard  so  far  as  it  recognizes  appropriations  for  "future  needs" 
without  present  application  of  the  water ;  also  in  allowing  a  num- 
ber of  years  before  nonuse  causes  forfeiture.  On  the  other  hand, 
pressure  by  appropriators  upon  the  courts  tends  to  reduce  the 
common-law  protection  of  future  use,  as  shown  chiefly  in  regard 
to  taking  the  riparian  right  on  eminent  domain.  If  the  common 
law  goes  far  in  protecting  the  interests  of  private  landowners,  on 
the  other  hand  the  law  of  appropriation  goes  far  in  subordinating 
everything  to  present  accomplishment. 

(3d  ed.) 

§  1013.  Preference  of  Domestic  Use. — Statutes  have  intro- 
duced into  the  law  of  appropriation  in  some  States  a  preference 
to  domestic  uses  with  or  without  a  series  of  other  rating  of  uses ; 
whereas  the  common  law  is  abandoning  the  distinction  between 
classes  of  uses. 

(3d  e<l.) 

§  1014.    Equality  vs.  Priority. — All  riparian  owners  are  equal 

in  use  at  common  law,  and  none  will  be  allowed  unreasonably  to 
impair  the  equal  possible  use  of  another.  Equality  and  unreason- 
ableness vary  with  the  surrounding  circumstances  of  extent  of 
lands,  seasons,  volume  of  water,  etc.  On  the  other  hand,  appro- 
priation gives  an  exclusive  right  measured  by  priority ;  it  hence  is 
a  system  of  inequality,  and  aims  at  certainty  and  to  prevent  varia- 
tion. 

The  law  of  appropriation  is  returning  to  the  common  law  in  so 
far  as  decisions  are  appearing,  holding  the  rights  of  appropria- 
tors to  be  correlative;  also  in  so  far  as  statutes  create  adminis- 
trative systems  under  which  officials  are  given  discretion  to  act 
for  the  general  correlative  good  of  all  users  on  a  stream;  also  in 
regard  to  pro-rating  statutes,  and  also  in  so  far  as,  by  the  prac- 
tice of  rotation,  appropriators  are  voluntarily  pooling  their  ex- 
clusive rights  for  the  common  good.  It  is  also  returning  to  the 
common-law  characteristic  of  varying  with  the  circumstances  in 


952   (3d  ed.)    Pt.  IV.    THE  COMMON  LAW  OF  RIPARIAN  EIGHTS.    §  1015 

so  far  as  beneficial  use,  upon  which  the  law  of  appropriation  rests, 
must,  of  necessity,  as  regards  irrigation,  vary  with  the  season, 
the  year,  the  change  of  crops,  the  mode  of  use,  and  the  number  of 
neighboring  irrigators.  Especially  is  priority  falling  in  regard  to 
pollution  of  streams,  where  the  Western  courts  are  strongly  tend- 
ing to  disregard  priority  as  a  justification. 

On  the  other  hand,  the  common  law  is  striving  to  be  more 
definite  and  to  accomplish  constancy  of  rights;  as,  for  example, 
in  substituting  the  watershed  as  a  limit  in  place  of  the  more  in- 
definite "reasonable  use." 

The  law  of  riparian  rights  is  one  of  the  few  instances  where 
the  common  law,  usually  so  individualistic,  has  accepted  a  com- 
munal system,  and  it  is  significant  that  in  this  it  borrowed  from 
the  civil  law,  whose  spirit  is  generally  paternal.  The  law  of  ripa- 
rian rights,  being  for  and  from  older  and  settled  communities, 
is  restrictive  upon  each  with  a  view  to  the  correlative  good  of 
all.  On  new  streams  in  the  unsettled  West,  which  require  big 
projects  before  anyone  can  go  there  at  all,  it  is  an  anomaly,  al- 
though it  contains  basic  principles  of  justice  for  small  streams 
when  growth  has  been  accomplished.  On  the  other  hand,  the  law 
of  appropriation  is  individualistic,  "first  come  first  served," 
which  is  proper  enough  on  new  and  unsettled  streams,  but  equally 
an  anomaly  after  full  settlement,  for  streams  upon  which  a  whole 
community  has  grown  dependent. 

(3d  ed.) 

§  1015.  In  California.— The  attitude  of  the  California  court 
toward  appropriation  is  aptly  shown  by  contrasting  the  following 
passages.  The  first  dealt  with  streams  on  public  land  in  the  days 
of  "Forty-nine."  The  court  then  said: 

"When  a  party  constructs  a  ditch,  and  diverts  the  waters  of  a 
stream  before  the  rights  of  others  have  attached  below,  he  only 
takes  it  from  one  unoccupied  mining  locality  to  another.  In  such 
case  there  can,  as  a  general  rule,  be  no  substantial  injury  done 
to  the  mining  interests  of  the  State,  or  to  the  rights  of  individuals. 
The  water  is  taken  to  a  locality  where  it  is  used ;  and  after  being 
so  used,  it  finds  its  way  to  other  mining  localities,  where  it  is 
again  used.  The  effect  of  the  diversion  is  not  to  diminish  the 
number  of  times  the  water  may  be  used.  In  the  majority  of  cases, 
it  is  used  as  often,  and  upon  the  whole,  as  profitably,  as  ii  it  had 


§  1015  Ch.  4C.     COMPARISON.  (3d  ed.)  953 

never  been  diverted,  but  had  continued  to  flow  down  its  natural 
channels.  The  general  usefulness  of  the  element  is  not  impaired 
by  the  diversion.  It  may  be  very  safely  assumed  that  as  much 
good,  if  not  more,  is  accomplished  by  the  diversion  as  could  have 
been  attained  had  such  diversion  never  occurred.  In  fact,  we 
must,  in  reason,  presume  that  the  water  is  taken  to  richer  mining 
localities,  where  it  is  more  needed,  and,  therefore,  the  diversion 
of  the  stream  promotes  this  leading  interest  of  the  State.  It  was 
upon  the  principle,  that  the  leading  interest  of  the  superior  pro- 
prietor was  attained  by  these  diversions,  that  the  decisions  of  this 
court  sustaining  them  were  predicated."  1 

Contrast  with  this  Lux  v.  Haggin,2  refusing  to  reject  the  com- 
mon law  for  streams  on  private  land : 

"In  our  opinion,  it  does  not  require  a  prophetic  vision  to  antici- 
pate that  the  adoption  of  the  rule,  so  called,  of  'appropriation' 
would  result  in  time  in  a  monopoly  of  all  the  waters  of  the  State 
by  comparatively  few  individuals,  or  combinations  of  individuals 
controlling  aggregated  capital,  who  could  either  apply  the  water 
to  purposes  useful  to  themselves,  or  sell  it  to  those  from  whom 
they  had  taken  it  away,  as  well  as  to  others." 

Most  California  water  development  is  by  large  companies  hav- 
ing old  public-land  appropriations  and  rights  acquired  by  pur- 
chase and  prescription.  But  as  the  law  of  exclusive  rights  by 
priority  of  appropriation  is  confined  in  California  to  waters  upon 
public  lands  (the  riparian  system  governing  private  lands),  the 
common  law  of  riparian  rights  is  becoming  the  general  basis  of  the 
California  law,  and  the  law  of  prior  appropriation  is  diminishing 
in  importance  so  far  as  concerns  new  acquisitions.  The  riparian 
system  will  govern  the  small  streams,  while  grant,  condemnation 
and  prescription  will  found  the  larger  projects  of  the  future. 

1  Bear  Eiver  etc.  Co.  v.  New  York  etc.  Co.,  8  Cal.  327,  68  Am.  Dec.  325,  4 
Morr.  Min.  Eep.  526. 

2  69  Cal.  255,  at  309,  10  Pac.  674. 

§§  1016-1024.     (Blank  numbers.) 


954  (3ded.)    Pt.  IV.    THE  COMMON  LAW  OF  EIPAEIAN  EIGHTS.    §1025 


CHAPTER  41. 

SOME   NOTES   ON   THE    EIPAEIAN   SYSTEM   TJNDEE    THE   EOMAN 
LAW  AND  THE  MODEEN  EUEOPEAN  LAW  OF  WATEES. 

§  1025.     The  corpus  of  running  water. 

§  1026.     The   law   of   riparian   rights. 

§   1027.     Grants   by   riparian   proprietors. 

§  1028.     The  administrative,  condemnational,  and  public  land  system. 

§  1029.     Bibliography. 

§§  1030-1038.     (Blank  numbers.) 

There  are  presented  here  cumulative  quotations  from  the  civil- 
law  authorities.  These  were  omitted  from  the  foregoing  chapters 
of  the  book  in  order  to  avoid  encumbering  it,  being  matters  upon 
which  the  civil  law  has  already  been  referred  to.1  They  are  here 
given  for  the  sake  of  reference  only,  as  they  would  otherwise 
be  inaccessible  to  most  readers,  and  at  the  same  time  are  of  prac- 
tical use  in  regions  along  the  Mexican  border,  where  titles  are 
sometimes  deraigned  from  a  Mexican  source. 

(3d  ed.) 

§  1025.  The  Corpus  of  Running  Water.— Vattel  says:  "There 
are  things  which  in  their  own  nature  cannot  be  possessed.  There 
are  others  of  which  nobody  claims  the  property,  and  which  remain 
common,  as  in  their  primitive  state  when  a  nation  takes  posses- 
sion of  a  country;  the  Roman  lawyers  called  these  things  res  com- 
munes, things  common;  such  were,  with  them  the  air,  the  running 
water,  the  sea,  the  fish  and  wild  beasts. ' '  2  Puffendorff  says :  ' '  'Tis 
usual  to  attribute  an  exemption  from  property  to  the  light  and 
heat  of  the  sun,  to  the  air,  to  the  running  water,  and  the  like."3 
Grotius  classes  aqua  profluens,  running  water,  with  things  com- 
mon, saying:  "At  idem  flumen,  qua  aqua  profluens  vocatur;  com- 
mune mansit,  nimirum  ut  bibi  hauririque  possit."4  Pardessus 
says:  "Mais  plusieurs  choses,  par  leur  nature,  ont  continue  de 

1  Supra,  c.   1,   and   sees.   614,   685,  proprietate    eximunt    lumen,  calorem- 
etc.  que  soluis,  aerem,  aquam  profluentem 

2  1  Law  of  Nations,  c.  20;  Chitty's  et  similia."     (Puffendorff,  lib.  4,  cap. 
Translation,  109,  sec.  234.  5,  sec.  2.     See,  also,  Id.,  lib.  3,  cap. 

3  Stephen's  Translation.     The  orig-  3,   sees.   3,   4.) 

inal  is,   "Earn    ob    rationem    vulgo  a  4  Grotius,  Bk.  cap.  2,  sec.  12. 


§  1025  Ch.  41.     EUROPEAN  RIPARIAN  SYSTEM.        (3d  ed.)  955 

n'appartenir  pas  plus  aux  uns  qu'aux  autres.  L 'usage  actuel 
qu'on  en  fait  est  le  seul  titre  qu'on  ait  a  n'en  etre  pas  depossede; 
des  qu'il  a  cesse,  une  autre  personne  a  les  memes  droits,  et  si  ces 
choses  ne  sont  pas  devenues  un  objet  de  propriete  exclusive  par 
suite  de  cet  usage,  celui  qui  les  occupe  a  son  tour  n'est  pas  cense 
s'emparer  du  bien  d'autrui.  L'eau,  considered  comme  substance 
independante  du  terrain  ou  elle  repose,  est  restee  dans  cette  com- 
munaute  negative,  et  n'appartient  evidemment  qu'a  celui  qui  s'en 
empare  le  premier.  Un  homme  qui  recevroit  la  pluie  dans  un  vase 
place  au-dessus  du  terrain  sur  lequel  cette  eau  auroit  du  tomber,  ne 
pourroit  etre  poursuivi  comme  voleur  par  le  proprietaire  de  ce 
terrain:  ce  dernier  ne  seroit  fonde  a  se  plaindre  que  de  ce  que 
1'etranger  auroit,  sans  droit,  place  un  vase  au-dessus  de  son  fonds. 
Ce  principe  ne  s 'applique  pas  moins  a  des  eaux  vives."5 

So  say  the  various  other  legal  writers.  "From  the  very  nature 
of  such  things  results  the  necessary  consequence  that  they  can 
never  be  completely  the  object  of  private  ownership;  that  they 
can  form  the  object  of  such  a  right  only  so  far,  and  so  long,  as  it 
is  possible  for  man  to  retain  them  under  his  dominion  or  control. 
Except  as  to  the  portions  which  an  individual  may  thus  have 
brought  under  subjection,  they  must  be  regarded  as  common  to  all 
the  world — res  omnium  communes. " 6  "  Res  communes,  .... 
things  the  property  of  no  one  in  particular  ....  the  air,  running 
water,  the  sea  and  its  coasts,  and  wild  animals  in  a  state  of  free- 
dom. The  air  is  necessary  to  human  life,  and  everyone  may  use 
so  much  of  it  as  is  requisite,  but  it  is  not  capable  of  appropriation ; 
the  same  is  the  case  with  running  water. "  7  "  There  is  nothing 
of  a  fixed  nature  about  such  water,  nothing  of  the  immovable, 

5  Pardessus,    Traite  des  Servitudes,  Guim's    supplement    to    Eschriche, 

vol.  I,  p.  174.      '  Ordenanzas  de  Tierres  y  Aguas,  Cap. 

Segun  las  leyes  del  tit.  28,  Part.  5,  1,  De  la  propiedad  en  general,  says: 

se  dividen  las  cosas  con  respecto  a  su  "El    aire   y  el   agua   no    pueden   ser 

posesion  6  dominio: — 1°.  en  comunes,  sometidos     al     propiedad."     Cap.     2, 

que  son  las  que  no  siendo  privativa-  §  8,  says :   "Entre  los  eomunes,  la  ley 

mente  de  ninguno  en  cuanto  a  la  pro-  de  Partida  cuenta   el  aire,  las  aguas 

piedad,  pertenecen  a  todos  los  hombres  de  las  lluvias   [rain  water],  el  mar  y 

del  mundo  en  cuanto  al  uso;  como  el  su    ribera,     advirtiendo     quede     ellas 

aire,  el  agua  de  la  lluvia  [rain  water],  puede    usar    cualquiera    criatura    que 

el  mar  y  sus  playas: — 2°.  en  publicas,  viva,  fuese  hombre,  ave  6  bestia." 

que  son  las  que  en  cuanto  a  la  pro-  6  Goudsmit,    on   the    Pandects    and 

priedad    pertenecen    a    un    pueblo    6  Roman  Law,  p.  113. 

nacion,  y  en  cuanto  al  uso  a  todos  los  7  Colquhoun,    Summary    of    Roman 

habitantes    de    s.u    distrito;    como    los  Law,  sec.  923. 
rios,  riberas,  puertos  y  caminos  pub- 
licos":  Eschriche,  "Cosa." 


956   (3d  ed.)    Pt.  IV.    THE  COMMON  LAW  OF  RIPAEIAN  EIGHTS.    §  1025 

nothing  on  which  one  may,  properly  speaking,  rest  a  claim  of  prop- 
erty. At  the  present  instant  it  is  at  one  point,  the  next  instant  at 
another,  and  a  new  portion  of  water  has  taken  its  place.  .... 
The  bed  of  the  stream  is  immovable  and  of  a  nature  to  become 
the  object  of  exclusive  property,  though  this  is  not  true  of  the 
water  which  covers  it. "  8  "  Things  common  to  all  are  those  which 
being  given  by  Providence  for  general  use  cannot  be  reduced  to 
the  nature  of  property.  Such  are  the  air,  running  water,  the  sea, 
and  the  shores  of  the  sea;  but  if  a  man  by  prescription,  from  time 
immemorial,  had  the  use  of  running  water,  as  for  a  mill,  his  case 
was  an  exception  to  the  general  rule,  but  he  must  not  waste  the 
water  unnecessarily ;  and  mills  and  other  structures  might  be  erected 
on  rivers  by  special  license."9  "Res  omnium  communes.  Such 
things,  it  is  obvious  by  their  very  nature,  could  not  stand 
in  private  ownership.  Every  person  might  use  and  enjoy  them, 
but  no  one  could  possess  them.  These  things  are  the  air,  run- 
ning water,  etc.  When  the  Romans  speak  of  the  air  as  a  res 
omnium  communis,  they  do  not  mean  to  include  the  space  above 
the  earth,  but  only  the  atmosphere.  The  man  who  owns  the  soil 
owns  the  space  above  it,  and  this  space  is  a  thing  in  commercio 
[capable  of  barter  or  sale]  ;  but  the  atmosphere  is  a  res  extra  com- 

mercium  [a  thing  not  capable  of  barter  or  sale] The  same 

remarks  apply  to  running  water.  The  space  in  which  the  brook 
or  streamlet  flows,  as  it  hastens  to  feed  the  larger  streams,  is  in 
private  ownership,  but  the  water  is  not."10 

The  entire  classification  in  the  Institutes  is  as  follows: 
"In  the  preceding  book  we  commented  upon  the  law  of  per- 
sons and  saw  the  way  in  which  things  are  either  the  property 
of  someone  or  of  no  one.     For  certain  things  by  natural  law  are 

8  "Cette  eau  n'a  rien  de  fixe,  rien  la  culture  et  les  travaux  des  hommes. 

d'immuable,    rien    sur    quoi   puisse,    a  On    voit    comment    les    lies    de    cours 

proprement  parler,    reposer    un  droit  d'eau   sont    de   nature   a   devenir   des 

de  propriety.     Dans   1'instant   present  objets    de    propriete    exclusive,    quoi- 

elle  est  sur  un  point;  1'instant  d'apres  qu'il  n'en  soit  pas  de  meme  de  1'eau 

elle  en  occupera  un  autre,  dans  lequel  qui     les     couvre."     Pardessus,    Traite 

une     nouvelle    portion    d'eau   lui    sue-  de  Servitudes,    vol.    I,  pp.    175,   176. 

cedera:     a   mesure    qu'elle    coule   sur  In  the  same  writer's  work,  page  174, 

des  fonds  elle  en  devient  1'accessoire.  the  theory  of  the  "negative  commun- 

Le  lit    seul    est    immuable:   celui  qui  ity"  is  set  forth  in  words  similar  to 

vient     y     puiser    aujourd'hui    pourra  those     above     quoted    from    Pothier. 

puiser  encore  demain  au  meme  point,  (Supra,  sec.  2.) 

quoique  ce  ne  soit   pas  la  meme  eau  9  Browne's  Civil  Law,  vol.  1,  p.  170. 

qui  s'offre  a  lui.     Si  ce    terrain    etoit  10  Tomkins  &  Leman  on  the  Insti- 

desseche   par   quelque   evenement   que  tutes  of  Gaius,  p.  209. 
ce  fut.  il  seroit  susceptible  de  recevoir 


§  1026  Ch.  41.     EUROPEAN  KIPARIAN  SYSTEM.        (3d  ed.)  957 

common,  certain  are  public,  certain  belong  to  organizations,  certain 
are  nobody  's  ;  others  are  property  of  individuals,  which  are  acquired 
in  various  ways  and  means  according  to  the  subject  matter.  1.  And 
by  natural  law  all  these  things  are  common  to  all:  Air,  and  running 
water,  and  the  sea,  and  as  a  consequence  the  shores  of  the  sea. 
Consequently  no  one  may  be  prohibited  from  going  to  the  shore 
of  the  sea,  so  long  as  he  keeps  away  from  houses  or  monuments, 
or  other  edifices  [etc.].  2.  Moreover,  all  rivers  and  harbors  are 
public  [etc.].  3.  Things  belonging  to  organizations  are  those  which 
belong  to  no  individual  but  to  cities,  such  as  theaters,  stadia  and  the 
like  [etc.].  4.  The  things  that  are  nobody's  are  the  things  sacred 
and  religious  and  of  the  church  ;  for  what  belongs  to  the  divine  power 
is  the  property  of  no  one.  The  things  sacred  are  [etc.]."  n 

In  Digest,  Book  I,  title  8,  it  is  said:  "Certain  things  by  natural 
law  are  common,  certain  belong  to  organizations,  certain  nobody's 
and  others  the  property  of  individuals  acquired  in  various  ways. 
And  the  things  which  by  natural  law  are  common  are  these  :  the  air, 
running  water  and  the  sea,  and  as  a  consequence  the  shores  of  the 
sea.  Likewise,  stones,  gems  and  the  like  which  we  find  on  the 
shore,  by  natural  law  immediately  become  ours.  But  rivers  almost 
all  and  harbors  are  public.  Things  sacred  and  religious  and  of 
the  church  belong  to  nobody.  '  '  12 

(3d  ed.) 

§  1026.     The  Law  of   Riparian  Rights.  —  The  law  of  riparian 

rights,  which  is  the  same  at  civil  law  as  at  common  law,13  did  not 

ll  Inst.  Just.  Liber  Secundus.     De  sunt,  ut  theatra,  stadia  et  similia  et 

Eerum     Divisione.     "Superiore     libro  si  qua  alia  sunt  communia  civitatium. 

de  jure  personarum  exposuimus  :  modo  4.  Nullius   autem   sunt   res   sacrae   et 

videamus  de  rebus  quae  vel  in  nostro  religiosae     et     sanctae;     quod     enim 

patrimonio    vel   extra    nostrum   patri-  divine   iuris   est,   id   nullius   in   bonis 

monium      habentur.     Quaedam      enim  est.     Sacra  sunt  quae,"   [etc.]. 

naturali  jure  communia  sunt  omnium,  12  "Quaedam  naturali  jure  communia 

quaedam   publica,   quaedam    universi-  gunt  omniumi  quaedam  universitatis, 

titis,  quaedam  nullius,  pleraque  singu-  quaedam  nullius,  pleraque  singulorum, 

lorum    quae    variis    ex    causis  cuique  quae  variis  ex  ^^^  cuique  adquirun- 

adquiruntur,    sicut    ex    subiectis    ap-  tur      Et  quidem  naturali  jure  omnium 

parebit.     1.  Et   quidem  naturali   jure  communia  sunt  ella:  aer   aqua  proflu- 

commuma  sunt  omnium  haec:   aer  et  et  m         et          hoc  ]ittora  marig 

aqua    profluens   et    mare    et    per    hoc  Item  }     m-      emmae    ceteraque,  quae 

htora    mans.     Nemo    igitur    ad    litus  in  littor  invenimus,  jure  naturlli  nostra 

mans  accedere  prohibetur,  dum  tamen  fiunt  ____  J                    nfl 


. 

sicut  et  mare.  2.  Flumina  autem  S««e  res  et  rehgiosae  et  sanctee  m 
omnia  et  portus  publica  sunt  [etc.].  °"  ll"!rTbTonls  s^nt-  ^^  Il4?'  T' 
____  3.  Universitatis  sunt,  non  sin-  tltle  V111.  Marcianus  and  Plorentmus. 
gulorum  veluti  quae  in  civitatibus  13  Supra,  sec.  685. 


958  (3ded.)    Pt.  IV.    THE  COMMON  LAW  OF  EIPARIAN  RIGHTS.    §1026 

become  well  established  in  the  civil  law  until  the  Code  Napoleon 
(section  644)  established  it  in  France  and  in  the  countries  upon 
which  Napoleon  forced  his  jurisdiction.  One  authority  says  the 
riparian  proprietors  have  the  sole  use  of  non-navigable  streams 
under  the  Code ;  that  before  the  Code  it  remained  for  some  time  in 
some  state  of  uncertainty,  but  the  enactment  of  the  Code  Napoleon 
left  no  room  for  further  doubt.14  Chancellor  Kent  also  says  that 
the  French  law  did  not  become  settled  until  the  Code  Napoleon.15 

It  thus  appears  that  the  law  of  riparian  rights  at  both  civil 
and  common  law  is  essentially  modern;  in  the  civil  law  by  the 
Code.  Napoleon  (section  644)  in  1804;  in  the  common  law  by  Mason 
v.  Hill  in  1833.  In  the  earlier  stages  of  the  civil  law  there  was, 
indeed,  much  pointing  to  the  same  rules.  For  example,  "The 
Praetor  says:  'I  forbid  anyone  to  put  any  structure  upon  a  river 
or  on  its  banks,  or  to  do  anything  that  would  deteriorate  the  navi- 
gation or  the  water-way."10  "Prohibitory  interdicts  forbade  any- 
thing being  done  tending  to  impede  the  navigation  of  public  rivers, 
or  changing  the  course  of  running  water."17  "Nor  was  any  ob- 
struction or  diversion  of  a  river  allowed. ' ' 18  Nevertheless,  the 
confusion  we  have  heretofore  traced  in  the  common  law,  as  to 
the  distinction  between  the  corpus  of  water  and  the  usufruct,  ap- 
pears also  in  the  earlier  civil  law;  and  even  some  expressions, 
comparatively  modern,  resemble  the  law  of  prior  appropriation. 
Thus  Eschriche  (Rio)  says  all  men  may  use  streams  whether  own- 
ing land  on  the  banks  or  not  (though  in  other  passages,  else- 
where herein  quoted,  he  denies  this,  and  confines  the  use  to  riparian 
proprietors).19 

14  "Nous  devons  reconnoitre  que  le  15  3   Com.,  p.  439,  note  c,  and  p. 

systeme  etoit  alors   de   considerer  les  441,  note  c. 

cours    d'eaux    non    navigables    comme  16  Justinian  D.,  lib.  43,  tit.  12,  sec.  1. 

proprietes  publiques  dont  les  riverains  17  Mears  on  Ortolan's  Commentaries, 

avoient    seulement    1'usage;    et    cette  p.  398. 

idee  dominoit  encore  lorsqu'un  projet  18  Browne's  Civil  Law,  vol.  1,  p.  171, 

de  code  civil,  ebauche  en  1793  et  1794,  citing  Digest,  lib.  43. 

fut    propos6    en    1'an    IV.      Quand   il  19  "Los  rios  pertenencen  a  todos  los 

seroit  vrai  que  ces  essais,  non  suivis  hombres  comunalmente,   de  modo   que 

d'execution,     eussent     laisse     pendant  aun  los  que  son  de  otra  tierra  estrana 

quelque  temps  une  sorte  d'incertitude  pueden  usar  de  ellos  como  los  naturales 

sur   le    droit   de   propriete    des    cours  y  moradores  del  territorio  que  bafian." 

d'eaux  non  navigables,  ni  flottables,  et  Eschriche,    "Rio."      In    the    Piedmont 

sur  les  conditions  de  cette  propriete,  le  (Sardinian)       Code,      "Article      667. 

rapprochement  des  articles  538  et  644  Among  the  different  users,  those  indi- 

du  code  ne  paroit  plus  permettre   de  viduals  whose  titles  or  rights  of  pos- 

doutes."     Pardessus,  Traite  de  Servi-  session  are  most  recent,  shall  first  bear 

tudes,  vol.  I,  p.  179.  the    effects   of   the    deficiency   of   the 


§  1026  Ch.  41.     EUEOPEAN  EIPAEIAN  SYSTEM.        (3d  ed.)  959 

As  shown  in  the  text,20  the  basis  of  the  modern  civil  law  is  the 
law  of  riparian  rights,  as  at  common  law.  Further  authorities  to 
this  effect  may  be  here  added.  In  framing  the  Italian  code  in 
1865,  the  following  was  laid  down:  "Article  543.  Whoever  has 
an  estate  bordering  on  a  stream  which  flows  naturally  and  without 
artificial  help,  excepting  such  as  are. declared  public  property  by 
article  427,  or  over  which  others  have  a  right,  may  make  use  of  it 
for  the  irrigation  of  his  lands,  or  for  the  exercise  of  his  industries, 
on  condition,  however,  that  he  restores  the  drainage  and  residue 
of  it  to  the  ordinary  channel.  Whoever  has  an  estate  crossed  by 
such  a  stream  may  also  use  it  in  the  interval  of  its  transit,  but 
with  the  obligation  of  restoring  the  drainage  and  residue  of  it  to  its 
natural  course  when  it  leaves  his  lands."  Similar  provisions  ap- 
pear in  the  Code  of  Sardinia  (1837),  articles  558  and  559.  These 
are  based  upon  the  Code  Napoleon,  of  France  (section  644). 

The  French  law  is  stated  as  follows  by  Pardessus  (in  addition 
to  passages  already  quoted)  :  "Le  droit  d 'irrigation  que  la  loi 
reconnoit  a  1'un  et  a  1'autre,  peut,  sans  doute,  aller  jusqu'au  point 
que  chacun  d'eux  fasse  entrer  1'eau,  par  des  saignees,  sur  sa 
propriete,  en  observant  de  n'en  pas  diminuer  le  volume  au  point 
de  priver  son  voisin  de  la  meme  faculte;  nous  croyons  meme  qu'il 
auroit  la  faculte  d'appuyer  momentanement  pour  cet  usage,  sur 
la  rive  opposee,  des  bois  ou  d'autres  matieres  servant  a  retenir  les 
eaux.  afin  qu'elles  puissent  s 'clever  a  la  hauteur  necessaire  pour 
arroser  son  heritage;  car  dans  un  grand  nombre  de  circonstances, 
le  droit  d 'irrigation  ne  peut  s'execer  autrement.  Mais  s'en  servir 
ainsi,  ce  n'est  pas  avoir  droit  d'en  changer  le  lit,  ou  d'en  arreter 
1'ecoulement  d'une  maniere  nuisible  au  voisin;  en  un  mot,  I'usage 
des  eaux  doit  etre  egal  en  faveur  des  deux.  Au  contraire,  le 
proprietaire  de  la  totalite  du  terrain  que  traverse  le  cours  d'eau, 
n'est  point  retenu  par  la  consideration  de  la  copropriete  de  son 
voisin ;  la  loi  lui  accorde  un  usage  qui  peut  aller,  lorsque  les 
reglemens  locaux  ne  s'y  opposent  pas,  jusqu'a  detourner  1'eau  vers 

supply."  The  following  expression  by  another,  although  it  may  be  found 
may  seem  based  upon  the  law  of  prior  situated  higher  upon  the  course  of  the 
appropriation,  but  is  really  based  only  water;  and  that  no  casual  employ- 
on  prescription,  establishing  simply  a  ment  can  interrupt  or  attack  rights 
very  short  period  of  limitation.  "It  is  previously  acquired  over  the  same 
understood  that  those  lower  and  bor-  waters  in  a  lower  district."  (Articles 
dering  properties  which  shall  have  7  and  10.  General  Water  Law  of 
anticipated  the  utilization  by  a  year  Spain  of  1879.) 
and  a  day,  cannot  be  deprived  of  it  20  Supra,  sec.  685. 


960  (3d  ed.)    Pt.  IV.    THE  COMMON  LAW  OF  EIP  ASIAN  EIGHTS.    §  1026 

tel  ou  tel  point:  une  seule  obligation  lui  est  imposee,  celle  de 
retabttr  le  cours  naturel  au  point  ou  finit  sa  propriete,  sans  pouvoir 
si  ce  n'est  du  consentement  des  interesses,  ou  en  vertu  d'un  regle- 
ment  administratif  que  les  tribunaux  doivent  respecter,  faire  couler 
1  'eau  sur  un  autre  f  onds,  a  qui  la  disposition  naturelle  des  lieux  ne 
1'attribueroit  pas  immediatement,  meme  quand  ce  fonds  lui  ap- 
partiendroit.  La  condition  de  cet  usage  est  que  1'eau,  dans  son 
cours  naturel,  touche  la  propriete  de  celui  qui  veut  en  profiter."21 
"Du  reste,  la  faculte  d'user  des  eaux  ne  doit  pas  degenerer  en  une 
occupation  tellement  exclusive  que  les  inferieurs  en  soient  prives. 
L  'eau  est  pour  tous  un  don  de  la  nature,  que  chacun  de  ceux  a  qui 
elle  peut  etre  utile,  a  droit  de  reclamer. ' ' 22 

The  Court  of  Cassation  (supreme  court  of  France),  in  1844, 
August  21st,  rendered  a  decision  on  this  point  as  follows :  "Running 
water  is  regarded  by  the  law  as  a  common  property.  Riparian 
proprietors  en  a  watercourse  naturally  have  equal  rights  to  the  use 
of  the  water,  although  they  cannot  exercise  this  right  simultan- 
eously. If  on  account  of  the  advantage  of  its  topographical  posi- 
tion the  proprietor  of  higher  land  on  a  stream  exercises  his  right 
before  the  proprietors  of  lower  lands,  he  is  not  the  less  obliged 
by  this  position  after  having  used  the  waters,  in  the  interest  of 
agriculture  and  industry,  to  return  them  to  their  usual  bed,  in 
order  that  the  proprietors  of  lower  lands  may  use  them  in  their 
turn.  When  the  proprietor  of  the  higher  land  possesses  at  the 
same  time  both  banks  of  the  stream  his  right  is  more  extended ; 
he  can  then  turn  the  watercourse  from  its  bed  within  the  extent 
of  his  domain,  and  take  the  waters  for  use  where  he  wills  on  his 
estate,  being  obliged  to  return  them  to  their  ordinary  course  where 
it  leaves  his  property.  This  proprietor  wall  not  have  to  return  the 
same  quantity  of  water  which  he  has  received,  or  any  certain  quan- 
tity of  water  determined,  but  he  must  economize  and  use  water  in 
a  just  measure  so  that  the  proprietors  of  lower  lands  may  exercise 
their  rights  also. ' ' 23  Again,  in  a  decision  rendered  in  1847,  the 
same  court  decided  that  an  upper  proprietor,  no  matter  how  ex- 
tended his  estates  on  both  banks  of  a  stream,  had  not  the  right  to 
absorb  all  the  water  on  his  lands,  to  the  detriment  of  a  lower 
proprietor,  and  that  the  lower  proprietor  had  a  right  to  a  regulation 

21  Pardessus,  Traite  de  Servitudes,          22  Ibid.,  p.  263. 
vol.  I,  p.  260.  23  Decision — August  21,  1844. 


§  1026  Ch.  41.     EUEOPEAN  RIPARIAN  SYSTEM.        (3d  ed.)  961 

whereby  he  would  be  assured  a  part  of  the  supply,  in  accordance 
with  his  needs  and  rights  as  adjudged  by  experts.24 

The  law  of  riparian  rights  is  a  controlling  factor  to-day  in  the 
development  of  water-power  in  France.25 

The  Spanish  law  is  given  by  Eschriche  as  follows:1  "If  run- 
ning water  passes  between  the  properties  of  different  owners,  each 
one  of  the  latter  can  use  it  for  the  irrigation  of  his  property,  or 
for  any  other  object;  not  entirely,  however,  but  only  in  the  part- 
that  belongs  to  him,  because  all  have  equal  rights,  and  consequently, 
they  can  prevent  each  other  from  taking  more  than  their  respective 
shares.  When  the  water  passes  within  a  property,  the  owner  can 
use  it  arbitrarily,  for,  since  the  both  banks  are  his,  he  has  not  to 
subject  himself  to  the  interests  of  an  opposite  riparian  owner ;  but  at 
the  outlet  of  his  estate,  he  must  return  it  to  its  natural  or  ordinary 
channel,  without  having  power  to  absorb  it,  or  entirely  consume  it, 
nor  give  it  another  direction,  because  it  does  not  belong  to  him  as  a 
property,  but  only  to  the  extent  of  the  use  which  he  can  make  of  it 
in  its  passage.  Since,  then,  every  riparian  proprietor  can  use  the 
water  which  passes  by  the  edge  of  his  property  to  irrigate  it,  it  is 
clear  that  he  can  open  drains,  irrigating  canals  and  ditches,  and 
even  construct  a  dam  or  other  structure  to  take  and  carry  it  to 
his  property,  provided  he  does  not  make  it  overflow  the  higher 
lands  against  the  will  of  their  owners  or  inundate  the  lower  lands 
in  a  way  that  may  cause  injuries,  nor  hold  it  in  such  a  way  that  the 
neighbors  are  deprived  of  their  accustomed  irrigation.  None  of  the 
riparian  proprietors  can  construct  works  on  the  property  of  another 
without  his  consent,  nor  even  raise  on  it  a  weir  or  dam  to  cause 
the  waters  to  enter  more  abundantly  on  his  property ;  since  all  have 
the  same  rights,  the  works  ought  not  to  be  made,  except  in  such 
a  way  that  the  water  will  be  divided  with  equality.  But  this  prin- 
ciple of  equality  in  the  division  of  the  waters  is  subordinate  to  the 
interest  of  agriculture,  which  will  regularly  demand  that  the  greater 
quantity  be  devoted  to  the  estates  of  greatest  extent,  as  the  Roman 
law  required.  Nevertheless,  as  the  largest  estate  does  not  always 
need  the  greatest  amount  of  water,  the  maxim  of  the  Romans  ought 
not  to  be  applied  except  under  certain  restrictions.  As  the  higher 

24  Decision — July  8,  1847.     See  Les  United  States  Geological  Survey,  upon 
Annales  des  Fonts  et  Chaussees,  Laws  foreign  laws  relative  to  water  power 
and  Decrees,  1847.  projects. 

25  See    Water    Supply    Paper,    238,          1  Eschriche,  "Aguaa,"  translated. 

Water  Rights — 61.'        „ 


962   (3ded.)    Pt.  IV.    THE  COMMON  LAW  OF  RIPARIAN  EIGHTS.    §1027 

proprietors  cannot  absolutely  deprive  the  lower  ones  of  the  use  of 
the  water,  but  must  restore  it  to  its  natural  channel  after  having 
made  use  of  it,  except  the  inevitable  loss  caused  by  the  irrigation ; 
in  the  same  manner,  in  an  inverse  sense,  the  owners  of  mills,  water- 
wheels,  fulling-mills,  factories,  and  other  industrial  establishments, 
have  no  such  right  to  all  the  water  necessary  for  the  movement  of 
their  machines  that  they  can  deprive  totally  of  it  the  proprietors 
of  the  higher  properties.  Nevertheless,  when  it  is  a  question  of 
mills  in  a  country  where  there  are  few,  and,  on  account  of  a  drought 
they  need  all  the  water,  there  ought  to  be  suspended  on  their  ac- 
count, for  the  common  good,  the  irrigation  of  the  meadows  and  the 
other  properties  as  long  as  the  state  of  drought  lasts." 


(3d  ed.) 

§  1027.  Grants  by  Riparian  Owners. — Although  there  are  some 
expressions  to  the  contrary,2  nevertheless,  as  a  general  statement, 
the  civil-law  rule  is  the  same  as  the  common-law  rule;  grants  are 
invalid  as  to  noncontracting  riparian  owners.3 


2  Piedmont  (Sardinian  Code). 
"Article  560.  Every  proprietor  or 
possessor  of  water  may  make  such  use 
of  the  same  for  himself  as  may  seem 
to  him  good,  or  he  may  dispose  of  it 
in  favor  of  other  parties,  provided  al- 
ways that  no  title  or  prescription 
exists  to  the  contrary."  Hall,  Irr. 
Dev.,  Part  I,  p.  261.  "En  vain  a-t-on 
voulu  soutenir  que  1'usage  des  eaux 
dont  on  jouit  en  vertu  de  1'art  644 
[Code  Napoleon]  n'est  pas  susceptible 
d'etre  cede,  parce  qu'il  eonstitue  an 
advantage  inherent  aux  fonds  river- 
ains, et  ne  peut  etre  separe  pour  etre 
applique  a  d'autres  fonds.  Cette  ob- 
jection (qui  sous  1'empire  meme  du 
code  Napoleon  n'avait  qu'une  valeur 
tres  contestable,  puisque  le  droit 
d'usage  dont  il  s'git  ne  eonstitue  pas 
une  veritable  servitude  dans  le  sens  de 
1'art  637),  s'est  trouvee  completement 
ecartee  par  la  loi  du  29  Avril,  1845." 
(The  law  of  1845,  however,  is  based 
wholly  upon  the  power  of  eminent 
domain.  See  supra,  sec.  614.)  "La 
convention  par  laquelle  1'un  des  river- 
ains renonce,  'au  profit  d'un  autre,  a 
tout  ou  partie  des  droits  d'usage  qui 
lui  competent  d'apres  1'art  644,'  est 
opposable  a  tous  les  riverains,  pour 
autant  qu'elle  ne  restreint  pas  leur 
propres  droits."  Droit  Civile  Fran- 


cais,  by  Aubrey  &  Rau,  4th  ed.,  vol. 
Ill,  p.  15,  note  7,  and  p.  52. 

3  "From  my  water-right,  so  Labeo 
says,  I  may  accommodate  my  neigh- 
bors with  water.  On  the  other  hand, 
Proculus  holds  that  the  water  may  not 
be  used  for  any  part  of  the  estate 
other  than  that  for  which  the  right 
was  acquired.  The  opinion  of  Pro- 
culus is  the  truer  one."  Digest  of 
Justinian,  as  translated  in  Ware's 
Rom.  W.  Law,  sec.  257.  In  the 
French  law,  a  riparian  proprietor  can- 
not sell  to  others  the  water  he  does 
not  use  on  his  own  land.  Daviel,  II, 
588;  Demante,  Cours,  II,  495,  lis.  IV; 
Demolombe,  XI,  155,  C.  pr.  R'eq.  11 
Avril,  1837,  Sir,  37,  1,  493;  contra, 
however,  Droit  Civ.  Fran.,  by  Aubrey 
&  Rau,  4th  ed.,  vol.  Ill,  p.  51.  In 
the  Spanish  and  Mexican  law:  "A 
riparian  owner  cannot,  without  the 
consent  of  the  other  riparian  owners 
interested,  concede  to  a  third  party, 
to  the  injury  of  the  former,  the  power 
to  take  water  in  the  same  current  or 
on  his  estate;  nor  use,  himself,  the 
water  to  irrigate  other  lands  which  be- 
long to  him,  but  which  are  not  situated 
on  the  same  bank;  although  this 
might  be  acquired  by  prescription." 
Hall's  Mexican  Law,  sec.  1399,  which 
is  a  translation  of  Eschriche  "Aguas," 


§  1027  Ch.  41.     EUROPEAN  KIPAEIAN  SYSTEM.        (3d  ed.)  963 

In  the  matter  of  grants  by  riparian  owners  to  nonriparian 
owners  upon  division  of  a  riparian  estate,  it  is  laid  down  by  the 
French  authorities  that  such  grants  are  binding  only  between  the 
parties  thereto.4  Where  a  riparian  estate  is  divided,  the  sub- 
divisions not  touching  the  stream  cease  to  have  riparian  rights 
against  riparian  owners  of  other  estates  than  that  which  had  been 
divided.  "The  nonriparian  portions  of  an  estate  which,  before  the 
division,  had  a  right  of  use  in  the  water,  are  no  longer  in  the  situa- 
tion demanded  by  article  644.5  One  may  reply,  it  is  true,  that  the 
partition  cannot  take  from  these  portions  a  right  which  they  had 
before  the  partition  was  executed,  and  invoke  the  principle  many 
times  recalled,  that  it  makes  little  difference  to  third  persons 
whether  the  estate  to  which  the  use  of  the  water  attaches,  belongs 
to  a  single  owner  or  to  many,  whether  it  rests  in  an  individual 
or  has  been  divided  up,  since  their  own  situation  has  not  been 
made  worse.  But  this  principle  does  not  seem  to  us  applicable 
except  to  servitudes,  properly  speaking.  The  use  of  water,  in  the 
case  now  under  consideration,  has  no  place  or  character  as  a  servi- 
tude ;  it  is  the  result  of  the  fact  that  the  water,  in  flowing  over  an 
estate,  becomes,  as  it  does  so,  an  incident  to  the  estate  it  flows  over ; 
an  incident  of  which  the  proprietor  of  this  estate  may  avail  him- 
self according  to  the  terms  laid  down  by  the  law ;  whereas  the  non- 
riparian  parts  have  ceased  to  be  a  part  of  a  whole  with  the  parts 
by  which  the  water  flows;  they  hence  have  not  now  the  rights  of 
taking  the  water  for  irrigation. ' '  6 

Eschriche  lays  down  the  Spanish  law  ambiguously  (but  ap- 
parently referring  only  to  rights  inter  paries]  :  that  the  subdivi- 
sion of  a  riparian  tract  may  carry  with  each  portion  a  water-right, 
without  express  agreement  to  that  effect."  The  passage,  however, 
seems  clearly  to  have  in  view  only  the  various  claimants  of  the 
partitioned  tract  among  themselves,  and  not  as  against  riparian 

sec.  4.    "If  a  proprietor  does  not  make  des  Irrigations,  No.  78.    These  authori- 

use  of  his  shares,  the  water  not  utilized  ties  are  cited  in  Droit  Civile  Francais, 

remains  with  the  common  store  for  the  by  Aubrey  &  Rau,  4th  ed.,  vol.  Ill, 

common     use     of     other     proprietors.  p.  48,  n.  11,  who  take  issue  with  them, 

This  idea  is  so  rooted  in  the  spirit  of  acknowledging,  however,  that  the  au- 

the  populace  that  the  administrators  thorities  are  as  stated,  and  that  the 

of  the  water  assured  us  they  had  never  last-named  book  stands  alone  to  the 

been  troubled  with  such  a  question."  contrary. 

(Aymard,  Spanish  Irr.,  pp.  36,  37.)  5  Of    the    Code    Napoleon,    quoted 

4  Daviel,  II,  590;  III,  770;  Proud-  supra,  sec.  685. 

hon    IV,  1259;   Demolombe,  XI,   153,  «  Pardessus,    Traite    de    Servitude^ 

154;  Pardessus,  I,  106;  Bertin,  Code  vol.  I,  p.  265. 


964   (3ded.)    Pt.  IV.    THE  COMMON  LAW  OF  RIP AEIAN  EIGHTS.    §1027 

owners  of  tracts  wholly  unconnected  with  the  partitioned  one.  He 
says :  7  ' '  A  riparian  proprietor  can  transfer  the  right  of  taking  the 
water  by  renunciation,  cession,  sale,  or  other  means  in  favor  of 
the  proprietor  on  the  other  side,  or  of  him  lower  down,  and  if, 
having  two  properties,  he  gets  rid  of  one,  he  can  reserve  the  ex- 
clusive right  of  using  the  water  for  that  which  he  preserves,  or 
conceding  it  for  that  which  he  transfers.  The  riparian  proprietor 
cannot,  without  the  consent  of  the  other  riparian  owners  interested, 
concede  to  a  third  party,  to  their  injury,  the  power  of  taking  water 
from  the  same  stream  or  on  to  his  estate,  nor  himself  use  the  water 
to  irrigate  another  property  which  belongs  to  him,  but  which  is  not 
situated  on  the  bank,  although  his  right  can  be  acquired  by  pre- 
scription. When  a  property  on  a  river  bank  is  divided  amongst 
several  joint  or  common  owners,  in  a  manner  that  the  portions 
which  are  assigned  or  sold  to  any  of  them,  and  which  now  form 
other  small  properties  not  bounding  on  the  stream,  they  preserve, 
nevertheless,  one  with  another,  their  right  to  the  water  in  the  same 
proportion  that  they  had  before  the  division,  even  when  nothing 
should  have  been  stipulated  on  this  subject."8 

Regarding  the  extension  of  a  riparian  estate  by  purchase  of  con- 
tiguous land,  Eschriche  says : 9  "  The  proprietor  who  augments  the 
extension  of  his  riparian  property  by  the  acquisition  of  lands  con- 
tiguous, which  increases  it,  cannot  take  more  water  than  formerly 
for  his  irrigation,  to  the  detriment  of  the  other  interested  parties; 
since,  if  he  had  that  power  he  could  in  time  render  illusory  the 
rights  of  the  other  riparian  proprietors. ' ' 10  That  is,  water  can- 
not be  used  thereon  ' '  in  detriment  of  the  other  riparian  owners ' ' ; 
but  apparently  water  can  be  used  thereon  if,  upon  the  facts,  it 
would  not  be  unreasonable  toward  other  proprietors.  That  the  use 
of  water  on  the  augmented  land  is  not  per  se  wrongful  is  recog- 
nized in  this  passage  by  the  qualification  of  the  words,  "to  the 
detriment  of  others  by  using  more  water."  That  it  is  not  wrong- 
ful to  use  the  same  a/mount  of  water  partly  on  the  new  land,  or 
even  more  if  not  unreasonable  to  other  riparian  owners  is  infer- 

7  Eschriche,  "Aguas."  le  agrega,  no  puede  tomar  mas  agua 

8  The    translation    is  from    Hall's      que  antes  para  su  riego  en  detrimento 
Irrigation  Development.  de  los  demas  interesados;  pues  si  tu- 

9  Eschriche,  "Aguas."  viese  tel  facultad,  podfia  con  el  tiempo 

10  "El   propietario   que   aumenta  la       hacer    ilusorios    los    derechos    de    los 
estension  de  su  heredad  riberiega  con      demas  propietarios  riberenos." 

la  adquisicion  de  tierras  contiguas  que 


§  1028  Ch.  41.     EUEOPEAN  RIPARIAN  SYSTEM.        (3d  ed.)  965 

entially  here    recognized;  and  is    emphatically    so  stated  by  the 
French  authorities  elsewhere  quoted.11 

(3d  ed.) 

§  1028. — The  Administrative,  Condemnational  and  Public  Land 
System. — But  while  the  law  of  riparian  rights  is  the  general  civil 
law  to-day,  yet  there  is  a  fundamental  matter  in  which  the  practical 
results  of  the  civil  law  differ  from  the  practical  results  of  the  com- 
mon law.  This'  lies  in  the  great  paternal  power  which  civil-law 
governments  possess  over  the  riparian  proprietors  themselves,  as 
opposed  to  the  opposite  attitude  of  the  common  law  which 
arose  in-  protest  against  the  "too  much  government"  of  the  con- 
tinent. By  virtue  of  the  great  power  European  governments  have 
over  individuals,  wholly  or  nearly  unfettered  by  constitutional  limi- 
tations, public  regulation  and  control  have  become  the  salient  fea- 
ture of  the  continental  law  of  waters  to-day.  Thus,  in  France, 
while  the  Code  Napoleon  (section  644)  is  paramount,12  yet  the 
larger  part  of  the  detail  of  French  law  of  irrigation  to-day  lies 
in  the  subordinate  statutes  of  1845  and  1847  of  which  we  have 
treated  elsewhere,13  whereby,  under  a  free  exercise  of  the  power  of 
eminent  domain,  rights  may  be  obtained  by  nonriparian  owners 
upon  due  compensation  to  the  riparian  owners,  and  a  riparian 
owner  may  himself  acquire  greater  rights  against  his  neighbors 
than  under  the  code.14  These  statutes,  however,  are  based  on  the 
free  exercise  of  the  power  of  eminent  domain,  requiring  full  com- 
pensation to  the  riparian  owners,  for  aside  from  that  the  French 
government  has  no  right  to  grant  concessions  in  watercourses  except 

11  Supra,  sees.  441,  442.  legislative    attacks    that    have    been 

12  Droit   Civile    Francais,    par    Au-  made   upon  it;    concluding   that   such 
brey  &  Rau,  4th  ed.,  vol.  Ill,  p.  22.  attacks   have  been  and  are  likely  to 

13  Supra,  sec.  614.  remain    unavailing,    and    that    power 

14  An     interesting     paper     of     the  legislation    must    proceed    along    the 
United      States      Geological      Survey  lines  of  condemnation  under  the  power 
(Water  Supply  Paper,  238),  recently  of  eminent  domain,  with  compensation 
issued,  deals  with  the  development  of  to  riparian  owners.    Such  proposals,  it 
water-power  in  France,  containing  con-  is   declared,   have   taken   the   lines   of 
tributions     from     French     engineers.  extending  to  power  uses  the  irrigation 
There,    as    in    Western    America,    the  condemnational  laws  of  1845  and  1847 
engineers  are  leading  a  movement  in  above  mentioned,  declaring  power  crea- 
derogation  of  riparian  rights;  and  the  tion  and  distribution  a  public  use  and 
paper,  while  ostensibly  an  exposition  giving  power  companies  the  right  to 
of  French  law,  is  in  reality  a  polemic  divert,  back  up,  or  store  water,  upon 
against     the     riparian     system.      The  due  hearing  and  compensation  to   ri- 
French  contributors  set  forth  the  pre-  parian   owners.      It   does   not   appear 
vailing   riparian  system   confirmed  by  that    such    laws    have    been    actually 
the  Code  Napoleon,  and  mention  the  passed  as  yet. 


966  (3d  ed.)    Pt.  IV.    THE  COMMON  LAW  OF  EIPAEIAN  EIGHTS.    §  1028 

such  as  are  dependences  of  the  public  domain.  Upon  the  public 
domain  it  freely  grants  concessions;  as  to  all  other  streams,  how- 
ever, the  use  is  reserved  to  the  riparian  proprietors,  and  the  gov- 
ernment has  a  mere  right  of  police.15  The  French  minister  of 
public  works  has  declared  that  he  had  never  attempted  to  make 
any  such  concessions  as  to  streams  or  private  land,  and  a  law  pro- 
posing to  give  him  such  power  was  rejected  and  never  got  passed.13 

It  is  true  that  in  Lux  v.  Haggin,17  the  court  thought  the  Mexican 
government  had  power  to  grant  concessions  because  the  corpus  of 
water  is  " common"  or  "public."  But  this  is  a  confusion  of  the 
distinction  between  the  corpus  and  the  usufruct,18  and  also  of  the 
law  of  the  public  domain  (which  in  Mexico  is  still  of  great  extent) 
and  of  private  land.  It  is  the  writer's  impression  that  under  the 
Mexican  law  just  as  under  the  French  law  (or  even  the  California 
law),  government  concessions  will  lie,  without  compensation  to 
riparian  owners,  only  as  to  waters  on  the  public  lands,  and  that 
Lux  v.  Haggin  was  confused  over  this  public  land  law,  and  the  law 
of  the  corpus  and  usufruct,  and  also  over  statutes  similar  to  those 
above  referred  to,  which  are  really  based  upon  the  power  of  emi- 
nent domain  and  require  compensation  to  the  riparian  owners. 
For  example,  in  the  Digest  of  Justinian  it  is  provided:  "For  the 
validity  of  the  concession  for  the  right  of  taking  water  onto  his 
property,  it  is  necessary  to  have  the  consent,  not  only  of  those 
in  whose  lands  the  water  rises,  but,  further,  of  those  who  have  the 
right  use  of  this  water — that  is  to  say,  of  those  who  have  a  right  of 

servitude  upon  this  water And,  in  general,  it  is  necessary 

to  have  the  consent  of  all  those  who  have  a  right  upon  the  stream  or 
upon  the  land  where  the  water  rises. "  19  It  is  probably  the  matter 
of  streams  on  public  land  which  gave  rise  to  the  statements  that  the 
Mexican  law  is  based  upon  governmental  concession.20  It  is  also 
the  foundation  of  the  "pueblo  right,"  21  which  is  a  part  of  the  Mexi- 
can law  for  the  colonization  of  public  land.22 

Besides  streams  on  the  public  domain  (and  also,  as  to  private 
lands,  this  free  exercise  of  the  power  of  eminent  domain,  forcing 
consent  upon  making  compensation),  there  is  a  system  of  public 
supervision  over  the  riparian  owners  and  such  other  users  as  have 

15  Droit  Civile  Francais,  par  Aubrey  19  Justinian  D.,  lib.  39,  tit.  3,  sec.  8. 
&  Rau,  4th  ed.,  vol.  Ill,  p:  19,  n.  22.  20  Supra,  sec.  36. 

16  Ibid.  21  Supra,  sec.  36. 

17  69  Cal.  255,  10  Pac.  674.  22  Supra,  sec.  68. 

18  Supra,  cc.  1,  2. 


§  1029  Ch.  41.     EUROPEAN  RIPARIAN  SYSTEM.        (3d  ed.)  967 

acquired  rights  by  condemnation  as  above  or  by  prescription.23 
The  administrative  officers  are  restricted,  however,  to  police  powers, 
to  facilitate  the  free  passage  of  the  water,  and  prevent  damage 
from  the  water  when  they  are  retained  at  too  great  a  height  by 
dams ;  to  regulate  the  height  of  dams,  etc. ;  but  not  to  interfere 
with  private  rights.  Their  actions,  so  far  as  they  be  simply  devoted 
to  the  field  of  private  rights,  are  void.24 

While,  consequently,  the  primal  rights  in  waters  are,  through 
the  influence  of  the  Code  Napoleon,  generally  confined  to  riparian 
proprietors  in  civil-law  countries,  yet  in  practical  detail  this  is 
much  varied  by  the  power  of  public  supervision,  by  the  power  over 
streams  on  public  land,  and  by  the  power  of  modifying  the  rights 
of  riparian  owners  on  making  compensation  to  them  under  a  free 
exercise  of  the  power  of  condemnation  on  eminent  domain. 

The  foregoing  notes  are  supplemental  to  the  civil-law  authorities 
given  in  other  parts  of  this  book.25 

(3d  ed.) 

§  1029.  Bibliography. — For  those  readers  who  may  wish  to 
make  a  further  investigation  into  this  subject,  much  value  will  be 
found  in  the  old  report  of  Mr.  Wm.  Ham.  Hall,  as  State  Engineer 
of  California,  obtainable  from  the  Secretary  of  State;  also  from 
the  publications  of  the  United  States  Department  of  Agriculture, 
and  also  from  the  works  below  given.1 

23  In    Venice,    irrigation     disputes  De    Buff  on    on    Waterworks,     1856; 
were  settled  at  a  public  meeting  once  a.  Malapert's  History   of   French  Legis- 
week  in  the   Cathedral   Square.     The  lation    on  Public    Works;    Dalloz    on 
Italian  government  in  1879  gave  prizes  French    Law,    vol.    19;    Debauve    on 
for   the   best    examples    of   irrigation  Irrigation,    vol.     18    of    Engineering 
practice.     Hall's  Report  as  State  En-  Series;    Proudhon,    sec.    815    et    seq.; 
gineer   of   California,   vol.   I,   p.   348,  Barral  on  Irrigation,  1876,  1877,  1878 ; 
quoting  King  .Humbert's  decree  open-  Magnon  on  Irrigation,  1869 ;  Moncrieff 
ing  competition.  on     Irrigation    in     Europe     (English 

24  Droit    Civile    Francais,    by    Au-  book),   1868;    Merlin's  Jurisprudence, 
brey  &  Rau,  4th  ed.,  vol.  Ill,  pp.  60,  17  vols.;    and  the  works  of  Pothier, 
61.    See,  also,  Smith's  "Italian  Irriga-  Pardessus,  etc.,  cited  in  the  foregoing 
tion,"  voi:  II,  p.  256.  sections. 

25  Supra,  cc.  1,  2,  first  principles;  Italian:  De  Buffon,  Italian  Irriga- 
sec   614   public  use;  sec.  685,  riparian  tion,   1862;    Smith,  Italian  Irrigation 
right.  («*  English),  2  vols.,  1855. 

i  French  Books:  De  Passy,  "Trea-  Spanish:  Bantabol  y  Ureta,  Spanish 
tise  on  Hydraulic  Service,"  3d  ed.,  Water  Law,  1884;  Eschriche,  "Dic- 
1876;  Dumont  on  Watercourses,  1845 ;  cionario";  Hall's  Mexican  Law. 

§§  1030-1038.     (Blank  numbers.) 


INDEX 


COVERING  BOTH  VOLUMES  IS  CONTAINED 
AT  THE  END  OF  VOLUME  II. 


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